More on Federalism and the Limits of the Treaty Power

We are, I thinking, nearing the end of the ongoing debate over federalism and the treaty power between guest-blogger Rick Pildes, Nick Rosenkranz, Eugene Kontorovich, and myself. My own view remains unchanged: the treaty power does not allow the federal government to make treaties that go beyond the scope of the authority granted to Congress and the president elsewhere in the Constitution. A treaty that makes commitments that go further than that is legally null and void, and cannot be enforced by the president, Congress, or the federal courts. I developed that view in greater detail here, here, and here.

In this post, I wish to comment briefly on three issues raised in Rick Pildes’ most recent contribution to the discussion: his theory that the treaty power is limited to “actual means of gaining the cooperation of other countries in ways that advance legitimate national policy goals of the national government”; the question of whether my approach would deligitimizee the 1783 peace treaty with Britain that the Founding Fathers hoped the Constitution would enable us to enforce; and the possible differences between my view and Nick Rosenkranz’s.

I. Rick Pildes’ Theory of the Limits of the Treaty Power.

In his most recent post, Rick articulates his theory of the limits of the treaty power more clearly than before:

Any legislation that purports to rest solely on Congress’ powers to implement treaties must actually be appropriately tied to the purposes, principles, and text of the treaty being implemented. Federalism values, as well as other constitutional values, can influence judicial judgments of whether such legislation is closely enough tied to the treaty itself. I suspect this might be the most important limitation, in practice, because it is the one it is easiest to imagine courts enforcing….

In addition, any treaty has to be a valid exercise of the treaty power, as I have said throughout. What makes a treaty valid or invalid? In principle, I would say something like a treaty must be an actual means of gaining the cooperation of other countries in ways that advance legitimate national policy goals of the national government. More historically, this idea is reflected in the notion that treaties can deal with those subjects that are “appropriate objects of negotiation and agreement among states.” Thus, if international cooperation is not helpful in achieving legitimate aims of the national government, the national government does not have the power to enter into a treaty on that subject.

The problems with this formulation run far deeper than the fact that it is – as Rick admits – extremely “vague” and difficult for courts to administer. Virtually any power could potentially become a policy tool useful as “an actual means of gaining the cooperation of other countries in ways that advance legitimate national policy goals of the national government.” With respect to almost any treaty that it might conceivably sign, the federal government can point to some concession extracted from foreign powers that serves a “legitimate national policy goal.” Even a treaty that, for example, overrides United States v. Lopez by criminalizing possession of guns in school zones, could be defended on the grounds that it will improve the public image of the United States among anti-gun Europeans. Good public relations is surely a legitimate objective of foreign policy.

Similarly, various Muslim nations have demanded that the United States censor speech offensive to their religious sensibilities. If the US signed a treaty with Saudi Arabia agreeing to ban anti-Muslim “hate speech” in exchange for discounted oil or military basing rights, that would clearly be an example of securing the Saudis’ “cooperation” for for the purpose of “advancing legitimate national policy goals.” Rick might argue that treaties that violate the Bill of Rights are unconstitutional even if they do promote legitimate policy goals. But, as Eugene Kontorovich points out, it is difficult to see why treaties that violate the Bill of Rights should be treated any differently in Rick’s framework than treaties that violate other constitutional rights or the Constitution’s structural constraints on the scope of federal power.

II. The Constitutionality of the 1783 Peace Treaty with Britain.

In both his most recent post and previously, Rick argues that my approach would invalidate the 1783 peace treaty with Britain, which ended the Revolutionary War. Earlier, I pointed out that the treaty’s provisions protecting the rights of British creditors who lent money to Americans could easily be justified under the Congress’ power to regulate international commerce. Rick now responds that the provisions protecting the property rights of British citizens. in America (mostly Americans who remained loyal to Britain during the War) could not be so justified. I am not so sure. The relevant provision of the treaty merely requires that “Congress shall earnestly recommend it to the Legislatures of the respective States to provide for the Restitution of all Estates, Rights, and Properties, which have been confiscated belonging to real British Subjects” (*emphasis added). Making an “earnest recommendation” is very different from actually forcing the states to do anything. Like the Confederation Congress, the one established by the Constitution can make an earnest recommendation on anything it wants without exceeding the limits of its authority. Indeed, Article I of the Constitution requires Congress to “keep a Journal of its proceedings” and that journal can presumably include any recommendations – earnest or otherwise – that Congress might care to make.

Moreover, Article VI of the Constitution explicitly validates treaties signed by the United States before the Constitution went into effect: “All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The 1783 treaty with Britain is obviously an “engagement.. entered into before the adoption of this Constitution.” Indeed, it was by far the most important such engagement. Why would the framers and ratifiers of the Constitution want to validate the 1783 treaty if it contained provisions that would not have been permissible in a treaty contracted under the Constitution? Possibly because the termination of America’s relationship with the mother country necessarily involved a wide range of issues unlikely to recur in future treaties. In particular, the 1783 treaty had to address the rights of numerous “Britons” who were actually Americans who had lived in the colonies all their lives, but now were threatened with dispossession or persecution by state governments due to their Loyalist sympathies.

III. Rosenkranz v. Somin?

In several posts, Rick makes the interesting suggestion that there is a fundamental difference between my position on the treaty power and that of Nick Rosenkranz. According to Rick, Rosenkranz’s view is that Congress cannot enact legislation to enforce treaties that go beyond the scope of federal authority, but such treaties can still be enforced by the federal courts, if they are designed to be “self-enforcing.”

My interpretation of Nick’s theory is that he believes such treaties are legally valid in theory, but cannot actually be enforced by any agency of the federal government unless and until we enact a constitutional amendment permitting such enforcement. As Nick himself put it, such treaties are merely “a promise to use… the amendment mechanism of Article V.” If my interpretation of Rosenkranz is correct, we have an interesting theoretical disagreement, but one with little practical importance. I explained why in this post. If Rick Pildes’ reading of Rosenkranz turns out to be accurate, then Nick and I disagree more profoundly. In my view, courts cannot enforce treaties that go beyond the scope of federal power because Article VI of the Constitution only gives treaties the status of law if they are “made… under the authority of the United States.” A treaty that purports to exercise power the federal government does not have is necessarily outside the range of that authority. Hopefully, Nick himself will reveal his original intent and explain which interpretation of his view is correct.