There Is No Basis In Constitutional Text For the Claim That A Treaty Can Increase The Legislative Powers of Congress

Guest-blogger Rick Pildes has now written five long and eloquent posts defending the proposition that a treaty can increase the legislative power of Congress. But I must say that I am struck by how little of his argument has anything to do with the Constitution as written. Rick’s five posts — like the five pages of Justice Holmes’s opinion in Missouri v. Holland — never so much as quote the relevant clauses of the Constitution. As I wrote two weeks ago:

The constitutional enumeration of federal legislative powers, plus the Tenth Amendment, surely puts the burden of proof on anyone who is arguing in favor of a particular congressional power — let alone arguing for a mechanism, outside of Article V, by which legislative powers can be expanded without limit. I would have thought that Rick would begin by gesturing to a particular constitutional provision. Where in the Constitution is one to find such a mechanism?

At last, in Rick’s fifth post, he has given his answer. He writes that this alleged mechanism is “a structural inference from the treaty-making power in Art. II and also a result of the necessary and proper (NP) clause.” That’s it. That is the sum total of the textual argument.

The Court has made it clear that this won’t do. One cannot simply gesture toward what the Court calls “the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause.” Printz v. United States. One cannot simply assert that potentially limitless legislative power is “a result of” NP.

Scholars have tried this approach before, without really looking at the text, for a quite specific reason. For years, this position was bolstered by a celebrated bit of purported constitutional drafting history — drafting history so powerful that it seemed to obviate the need to parse the actual text. For years it was said that an early draft of the Necessary and Proper Clause actually included the words “to enforce treaties,” but that these words had been struck from the Clause as superfluous.

I have shown that this purported drafting history was simply false. See Executing the Treaty Power at 1912-18. As it turns out, no draft of the Necessary and Proper Clause ever included those words.

If nothing else, one would have thought that this revelation would send the defenders of Missouri v. Holland back to the text of the Constitution, to see what it actually says. When one reads it closely, one can see that it neither says nor implies that a treaty can increase the power of Congress. Holland‘s defenders have not yet offered a counterargument grounded in constitutional text.

Again, Justice Scalia has said: “I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government.” (oral argument, Golan v. Holder (2012)). To persuade Justice Scalia and his colleagues that he is wrong this time around, it will surely be necessary to point to some specific words in the Constitution.