Author Archive | Prof. Rick Pildes (NYU), guest-blogging

The Limits on the Treaty Power

Hopefully, I will be able to leave the treaty power issue alone for a while after this post, but let me finish elaborating my views in the context of also responding to the series of posts from Nick and others since my last posting.

1.  My principal argument has been directed against the specific limit on the treaty power that Nick argues follows from the Constitution’s text.  As I said in my initial post, I believe there might well be some constitutionally derived limits on the treaty power, but that Nick’s particular argument as to what those limits are is not convincing.  Curtis Bradley expressly agrees with me on that.   As I read him, Ilya appears to as well, but I’m not sure he has fully worked out his view yet.  But I don’t think anyone in this exchange has endorsed the specific view that is unique to Nick:  that self-executing treaties can override federalism constraints, but that non-self executing treaties, followed by implementing legislation, cannot.

It was Nick’s particular theory that I was primarily debating, not the full Missouri v. Holland set of issues.  At times, the discussion has run the former and the latter together, but to clarify what’s at stake, we need to be careful to keep Nick’s theory separate from other theories on how the treaty power might be constitutionally bounded.   If there are limits, we need a different account than Nick’s of what they might be.

2.  Further on Nick’s particular theory:  Nick’s theory has the same Reid v. Covert “problem” that my approach has, though nothing in Nick’s recent post on that issue recognizes that.  A longstanding question in this area has been if treaties cannot override individual rights provisions in the Constitution, why should they be able to override federalism-based constitutional provisions/doctrines (leave [...]

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Does Congress Have the Power to Enforce Treaties: Part IV

Apologies for the delay, the flu bug set me back enough to cancel class and to be unable to re-engage this important dialogue sooner.   I hope a couple more posts will be enough to leave this discussion in the hands of readers for their own judgment.

To re-state my understanding of the Constitution’s design:  Treaties were to be hard to enter into (hence the 2/3 Senate ratification requirement), but easier to enforce than under the Articles of Confederation, where compliance depended on the willingness of state legislatures.  If a treaty is a valid treaty, Congress’ power to implement the treaty is not constrained by any “reserved” legislative powers of the states; the Constitution ensures that the legislative powers to implement treaties lie with the national government.  This is a structural inference from the treaty-making power in Art. II and also a result of the necessary and proper (NP) clause.  There are limits on what treaties can do, but those limits are to be found in various other provisions of the Constitution (Eugene is correct that those limits are likely not exhausted just by the Bill of Rights) and in the requirement that treaties must be valid exercises of the treaty power.

The Constitution was specifically designed to overcome “The Treaty of Peace” problem:  peace treaties often require a nation to honor the claims of foreign creditors, eg, and Congress was giving the power to override state contract/debt laws in order to enforce the terms under which the Revolutionary War was ended.  So far, I don’t think any of the responses from Nick, Ilya, and Eugene have yet explained how their views would enable Congress successfully to enforce the Treaty of Peace.  In my view, it’s a serious strike against any interpretation of the Constitution if it cannot explain how the [...]

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Does Congress Have the Power to Enforce Treaties: Part III

Recent posts (and comments) help clarify what is at stake in the debate about the treaty power and the Bond case.  American constitutional doctrine since WW II, at least, is clear that a treaty cannot give Congress the power to violate the individual rights provisions of the Bill of Rights.  That’s the principle of Reid v. Covert.  Nick and I agree about that.  The only issue is whether a treaty can alter the balance of lawmaking power that would otherwise exist between the national and state governments, given the Constitution’s grant of exclusive powers to the national government to make treaties and the effort to ensure that the U.S. would be able to comply with its treaty commitments.

In addition, Ilya and Nick actually disagree in profound ways that they do not yet acknowledge or recognize and that clarify my differences with Nick’s position.  While this sentence gets a little ahead of the supporting argument so far, my position is going to be that Congress has legislative power to implement and enforce a valid treaty (as long as it doesn’t violate the Bill of Rights, as noted above).  I recognize that puts a lot of weight on the question what makes a treaty valid (or invalid), but I think that’s precisely where the weight ought to be.

Ilya’s example illustrates this point; he is concerned with Congress enter into a treaty pretextually – not for genuine reasons of foreign policy, international relations, and the like – but for the purpose of gaining legislative powers that would otherwise be in the hands of the states.  But if we are worried about that concern (it’s not clear we have a historical example of this actually having happened), the way to address it is to conclude that a pretextual treaty of [...]

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The Supreme Court Cert. Grant in Bond

To the surprise of many Supreme Court observers, the Court today granted cert. in the Bond case, which Nick and I have been debating on this blog.  The grant was a surprise because the Court had re-listed Bond for discussion at conference seven or eight times; after that many re-listings, the most typical outcome is cert. denied, with at least one dissenting opinion.  It’s possible a majority of the Court had initially voted to deny cert. but the dissenting opinion was convincing enough it persuaded the Court it should not decide the issue without plenary consideration.  It’s also possible the Court was uncertain throughout about whether to grant cert. and was working through the several issues the case presents before concluding it was appropriate to hear on the merits.

In light of the grant, it’s perhaps worthwhile to collect in one place the debate Nick and I have conducted so far.  See here, here, here, and here.  The biggest issue the case presents is whether Missouri v. Holland was rightly decided on the scope of Congress’ power to legislate to enforce valid treaties, which is precisely the issue we have been debating.  We will continue that debate over the coming days, now with the greater sense of urgency and interest the Court’s grant generates. [...]

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Does Congress Have the Power to Enforce Treaties? Part II

As we move into the areas where Nick and I disagree about the treaty power, I want to avoid getting mired in the smaller constitutional issues we could debate and instead focus on four of the deepest and most general problems I see in Nick’s approach.  This post will address the first two.  Nick’s argument, remember, is that a treaty cannot generate any legislative power to implement the treaty that Congress otherwise would not have.

 First, Nick’s approach accepts that if the Senate and President choose to make a treaty self-executing, then that treaty can indeed displace the states’ traditional legislative powers.  Thus, under Nick’s approach, a treaty to eliminate the death penalty that was self-executing would validly and constitutionally have the power to displace the states’ traditional police-power authority to decide for themselves whether to adopt the death penalty – even if Congress would lack legislative power to do so absent the treaty.  In other words, the Senate and the President can jointly ensure faithful compliance with a treaty obligation by making the treaty self-executing.

It is easy to overlook this fact in responding to Nick’s “solution” to the treaty problem.  But because Nick’s approach would apply only if the President and Senate choose not to make a treaty self-executing, so that Congress must enact legislation to implement the treaty as domestic law, much of the rhetorical force behind Nick’s argument, as well as the constitutional foundation for it, seems to me to dissipate.

On the rhetorical side, Nick invokes concerns such as the one he quotes Justice Scalia as expressing at a recent oral argument:  can it be the case that if the President and Senate enter into a treaty with Zimbabwe, Congress now has legislative powers it would not otherwise have to enforce that treaty?  But [...]

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Does Congress have the Power to Enforce Treaties? Part I

I want to thank Eugene and Nick for graciously inviting me to guest blog here.

One of the longstanding conundrums in American constitutional history, theory, and doctrine is how the treaty power relates to Congress’ Art. I enumerated powers.  This question is also pending before the Supreme Court in Bond v. United States, in which the cert. petition challenges the constitutional power of Congress to enforce the international Chemical Weapons Convention, a treaty the United States entered into in 1993.  The Court has already re-listed Bond an exceptional six times for the Court’s consideration at conference – a strong signal that at least some Justices consider these issues extremely serious ones.

The most momentous argument the Bond petition raises follows the novel solution to “the treaty problem” developed in a provocative article by Nick Rosenkranz, Executing the Treaty PowerDistilled to a sentence, Nick’s argument (which he will explain more fully in his own posts) is that a treaty cannot change the balance of federal-state power established in Art. I, which enumerates Congress’ specific powers.  More specifically, if Congress legislates to enforce a treaty, Congress is limited to the powers it otherwise has in Art. I; the treaty itself does not permit Congress to enact legislation it would otherwise be constitutionally forbidden to enact.  In a few posts, I’ll suggest why I think Nick’s analysis is ultimately unconvincing.

The treaty-power issue is part of the larger set of questions about how the outward looking aspects of the Constitution — its structure of powers for international relations, foreign affairs, war, and the like — relate to the Constitution’s inward looking structure of powers over purely domestic matters.  In starting to think about these issues, it’s essential to understand  that ensuring that the United States would be able to credibly make [...]

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