This will be my final post of the debate with guest-blogger Rick Pildes about whether a treaty can increase the legislative power of Congress. In this post, I will just make some brief concluding remarks.
1 Rick has been at pains to suggest a fundamental disagreement between Ilya and me. This is tactically clever – opening up a second front. And Ilya and I do have an interesting theoretical disagreement. But on the fundamental point — the point on which Rick and I agreed to debate, the point on which I wrote in the Harvard Law Review, the point on which the Court has granted certiorari — Ilya and I are in perfect agreement with Henry St. George Tucker’s leading treatise, with Senator Wilson Cary Nicholas during the Louisiana Purchase debate, with the Supreme Court in Mayor of New Orleans v. United States, and with Justice Scalia at oral argument last term: a treaty cannot increase the legislative power of Congress.
2 In my last post, I pointed out that Missouri v. Holland is in deep tension with Reid v. Covert, and that it is Rick’s burden to explain why a treaty cannot empower Congress to violate the Bill of Rights (or Article I, section 9, or certain structural limits like the anti-commandeering principle) but can empower Congress to exceed its enumerated powers. Rick’s most recent post acknowledges that his approach has this “Reid v. Covert ‘problem’” and that it is “a genuinely serious question.” But he makes no attempt to answer it. Instead, Rick resorts to jujitsu. This is “every bit as much a question for Nick,” he insists, and leaves it at that.
But Reid v. Covert does not pose a problem for me. The treaty power is a power given to [...]