Archive | Treaties

Senator Ted Cruz: Limits On The Treaty Power

Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste:

The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.

Cruz thus argues that Justice Holmes’s opinion in Missouri v. Holland must be limited to its facts, or else overruled. Regular readers know that I entirely agree.

It is quite unusual for a sitting senator to publish original legal scholarship. And it is doubly unusual for a senator to, in effect, argue for constitutional limits on his own power. Read the whole thing. [...]

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In Bond Oral Argument, the Federal Government Once Again Refuses to Admit there are any Structural Limits to Federal Power

Earlier this week, the Supreme Court heard oral argument in Bond v. United States, an important case on the issue of whether the Constitution allows the federal government to use international treaties to give Congress authority over issues that otherwise would be beyond the scope of federal power. Bond – which has already been to the Supreme Court once before – arose from a seemingly ridiculous case where federal prosecutors decided to charge a woman who had tried to injure a romantic rival by smearing a dangerous chemical on a doorknob the latter was likely to touch, with violating the Chemical Weapons Convention. The incredibly broad federal statute implementing the CWC bans the use or possession of “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals” (though there is an exemption for the use of such chemicals for a “peaceful purpose,” which was narrowly construed by the court of appeals).

As my colleague Michael Greve points out, during the oral argument Solicitor General Donald Verrilli repeated a mistake that has gotten the federal government into trouble in several previous federalism cases, including United States v. Lopez and NFIB v. Sebelius: refusing to admit that there are any structural limits to the scope of federal power. Throughout the argument, he consistently refused to admit that the courts could enforce any structural constraints on the range of issues that might be covered by a treaty. While he noted there “might” be an “outer limit” to the treaty power, he refused to state what it was, or even admit that it necessarily existed at all. This extreme position drew skepticism even from liberal Justice Stephen Breyer, a longtime supporter of broad theories of federal power:


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“Great” Powers and Federal Power Over Treaties

In my new article, Rethinking the Federal Eminent Domain Power, I begin by explaining a theory of the Necessary and Proper Clause that I call the idea of “great powers.” Put simply, the idea is that there are some powers that are sufficiently important that they cannot be implied through the Clause, even if they are otherwise useful for carrying out an enumerated power. Depending on your attitude toward textualism, you can either call this an implicit background understanding of the Clause, or you can call it an interpretation of the word “proper” — a power might be too great to be “proper” even if it is “necessary.”

I explain in the article that this idea has a strong historical pedigree. James Madison invoked it in his speech about the unconstitutionality of the national bank. And even the supporters of the bank, like Alexander Hamilton and John Marshall’s opinion in McCulloch v. Maryland, conceded the principle. As McCulloch puts it, there is a class of “great substantive and independent power[s] which cannot be implied as incidental to other powers or used as a means of executing them.”

The idea has also been getting play in the Court more recently. Chief Justice Roberts’s controlling opinion in NFIB v. Sebelius describes the individual mandate as a “great substantive and independent power” (quoting McCulloch), which is why it can’t be upheld under the Necessary and Proper Clause. Chief Justice Roberts returned to the language again in his separate opinion in United States v. Kebodeaux, where he said that “it is difficult to imagine a clearer example of such a ‘great substantive and independent power'” than the “police power.” That is, the Necessary and Proper Clause cannot be interpreted in such a way that would imply that the federal government had [...]

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What Questions Will Be Resolved By Bond v. United States?

Tomorrow the Supreme Court will hear argument in Bond v. United States, a case about a conviction under a statute that purports to implement a chemical weapons treaty. The arguments at the Court raise basic questions about the scope of the treaty power and the scope of Congress’s ability to implement that treaty power. While I have been following the case, I continue to find the issues rather difficult and not to be wholly satisfied with either side’s resolution of them.

When the federal government wants to make domestic law through the treaty process, there are at least three ways it might try to do so:

1, the Senate and the President can make a self-executing treaty, which will be the “supreme law of the land” under the Supremacy Clause.

2, the Senate and the President can make a non-self-executing treaty, which requires domestic implementation; Congress can then pass a statute implementing that treaty.

3, the Senate and the President can make a non-self-executing treaty, which requires domestic implementation; the states can then pass statutes implementing that treaty.

Missouri v. Holland, and the prosecution in Bond, feature an example of category 2. Co-blogger Nick has argued that the permissible scope of category 2 is quite narrow. (That argument is contested here.) But I find it hard to fully assess the scope or relevance of category 2 without knowing more about the scope of category 1. (Everybody seems to agree that category 3 is permissible.)

If the scope of the self-executing treaty power (#1) is very broad, then it may not matter very much if the scope of the implementing power (#2) is very narrow — it might matter for the outcome of Ms. Bond’s case and various implementing statutes currently on the books, but not so much going [...]

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President Obama and Compliance with Domestic Versus International Law

Last week I asked whether Presidents have a stronger obligation to obey domestic law than they do to obey international law, and suggested at least one argument for that view. In a very interesting pair of posts, Marty Lederman provides reason to think that President Obama may have this view as well. Treaties have legal status both as domestic law and international law, but they can have different statuses. Congressional authorization would trump the U.N. Charter as a matter of domestic law, even though an attack on Syria would probably still violate the Charter as a matter of international law. There’s much more detailed analysis in his posts. [...]

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The Solicitor General’s Brief in Bond v. United States

Regular readers are familiar with Bond v. United States, the pending case that presents the question of whether, per Missouri v. Holland, a treaty can increase the legislative power of Congress. I posted about Paul Clement’s brief on behalf of Ms. Bond here, and I posted about my brief on behalf of the Cato Institute and other amici here.

The Solicitor General filed his brief last week, and it is now available here. Here is a taste (SG Brief at 47):

The Court should reject petitioner’s invitation (Br. 33) to overrule Holland. This Court has “always required a departure from precedent to be supported by some ‘special justification.’ ” United States v. IBM Corp., 517 U.S. 843, 856 (1996) (citation omitted). No such special justification is present here. And “[s]tare decisis has added force” when the Political Branches have “acted in reliance on a previous decision.” Hilton v. South Carolina Pub. Rys. Comm’n, 502 U.S. 197, 202 (1991). Since the founding, U.S. diplomats have negotiated with foreign powers armed with the assurance that the United States possesses the authority to ensure implementation of its treaty obligations, even in areas generally reserved to the States.

Read the whole thing. [...]

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Cato Brief in Bond Featured in National Law Journal

A while ago I posted about a brief that I filed in Bond v. United States on behalf of the Cato Institute et al., arguing that a treaty cannot increase the legislative power of Congress. Over at Cato, Ilya Shapiro reports that the National Law Journal recently featured our brief as its “brief of the week” and ran a nice story about it, here. [...]

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Bond Amicus Brief for Cato et al.

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner.

Yesterday, I filed an amicus brief on behalf of the Cato Institute, the Center for Constitutional Jurisprudence, and the Atlantic Legal Foundation. (My superb co-counsel are Ilya Shapiro of Cato, John Eastman of CCJ, Martin Kaufman of ALF, and, I am honored to say, former Attorney General Ed Meese III.) The brief is based upon my Harvard Law Review article, Executing the Treaty Power.

Here is the Summary of Argument:

The court below held that the Chemical Weapons Convention increased the power of Congress, empowering it to enact 18 U.S.C. § 229. It held, in other words, that Congress is not limited to those powers enumerated in the Constitution; rather, those powers may be increased by treaty. The Third Circuit believed that it was bound to reach this conclusion by a single, conclusory sentence in Missouri v. Holland: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

But the Third Circuit was obviously uneasy with this conclusion: “with practically no qualifying language in Holland to turn to, we are bound to take at face value” that single sentence. Bond, 681 F.3d at 162. “[I]t may be that there is more to say about the uncompromising language used in Holland than we are able to say, but that very direct language demands from us a direct acknowledgement

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Paul Clement’s Brief for Petitioner in Bond v. United States

As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the legislative power of Congress. In 1920, in Missouri v. Holland, the Supreme Court seemed to say yes. In 2005, in the Harvard Law Review, I said no. Several of us, including guest blogger Rick Pildes, debated the question at length earlier this year (my final post includes links to all the others). Now, the Court is poised to decide the question.

Yesterday, Paul Clement filed his brief on behalf of Ms. Bond. It is an excellent piece of work. Here is a taste:

[T]he government is left to argue that, in our constitutional system, a valid non-self-executing treaty grants Congress a plenary power to regulate all conduct that bears a rational relationship to the treaty …. [T]hat contention is fundamentally incompatible with the Constitution and this Court’s precedents. Missouri v. Holland does not establish that proposition, but if it did, it could not be reconciled with more recent decisions that respect our basic constitutional structure. Neither any clause of the Constitution alone nor all of them in combination grants Congress that kind of police power. And the last place such plenary power lies inchoate, waiting to be unleashed by a ratified treaty, is the Necessary and Proper Clause. An unchecked power to implement treaties would amount to exactly the sort of “great substantive and independent power” that the Necessary and Proper Clause cannot supply. McCulloch v. Maryland, 17 U.S. 316, 411 (1819); see also NFIB, 132 S. Ct. at 2591–92 (Roberts, C.J.).

I will be posting the other briefs (including mine, for Cato et al.) as they are filed. [...]

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International Criminal Court Jurisdiction Over Israeli Settlements

I have put up a new working paper on SSRN, entitled Jurisdiction Over Israeli Settlement Activity in the International Criminal Court. It is not about the legality of settlements. Rather, it is about whether repeated and growing threats by Palestine and its supporters to make an international case out of it are consistent with the admissibility requirements of the ICC. I welcome substantive comments (as well as inquiries from law review editors).

Here is the abstract:

In the wake of the U.N. General Assembly’s recent recognition of Palestinian statehood, the Palestinian government has made clear its intention to accept the jurisdiction of the International Criminal Court (ICC), where it could challenge the legality of Israeli settlements. This Article explores the previously unexamined jurisdictional hurdles for such a case. (To focus on the jurisdictional issues, the Article assumes for the sake of argument the validity on the merits of the legal claims against the settlements.)

First, the ICC can only consider situations “on the territory” of Palestine. Yet the scope of that territory is undefined. An “occupation” can arise even in an area that is not the territory of any state – but ICC jurisdiction does not extend there. Thus even if Israel is an occupying power throughout the West Bank for the purposes of substantive humanitarian law, this does not establish that settlement activity occurs “on the territory” of Palestine. Moreover, the ICC lacks the power to determine the boundaries of states, and certainly of non-member states. Moreover, the Oslo Accords give Israel exclusive criminal jurisdiction over Israelis in the West Bank. Palestine cannot delegate to the ICC territorial jurisdiction that it does not possess.

Second, the ICC only takes situations of particular “gravity.” Yet settlements are not a “grave breach” of the Geneva Conventions. No international criminal tribunal [...]

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One Last Clarification on Federalism and the Treaty Power

Before leaving off the subject of federalism and the treaty power, I would like to clarify one aspect of my position. In arguing, as I have from the beginning, that the treaty power cannot expand the scope of federal authority beyond that which is granted by other parts of the Constitution, I do not mean to suggest that treaties may only cover issues that fall within the scope of Congress’ authority under Article I, Section 8 of the Constitution.

I agree with Nick Rosenkranz’s comment that treaties “need not necessarily be on the same subjects enumerated in Article I, section 8 — a section that, by its terms, enumerates the lawmaking powers of Congress.” But that does not mean that the treaty power is not limited by the doctrine of enumerated powers at all. The Constitution gives the federal government lots of other powers beyond those listed in Article I Section 8, most notably the powers of the president listed in Article II, and those of the federal courts outlined in Article III. The treaty power may make commitments requiring the use of those other powers, as well as the congressional powers listed in Article I. For example, a military alliance like that created by the NATO treaty makes commitments regarding the exercise of the president’s powers as commander-in-chief of the armed forces. As I have previously emphasized, Article VI of the Constitution makes treaties the law of the land so long as they “are made, or which shall be made, under the authority of the United States.” The “authority of the United States” includes all powers of every branch of the federal government.

What is not clear from Nick’s last post is whether and to what extent he disagrees with me about the status of self-executing treaties [...]

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