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Final Post Of The Treaty Debate

By on February 3, 2013 6:42 pm in Constitutional Law, Treaties

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 [...]

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More on Federalism and the Limits of the Treaty Power

By on February 3, 2013 11:15 am in Federalism, Treaties

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

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The Limits on the Treaty Power

By on February 2, 2013 4:23 pm in Constitutional Law, Treaties

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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Missouri v. Holland vs. Reid v. Covert

By on January 30, 2013 5:59 pm in Constitutional Law, Treaties, Uncategorized

My thanks to Rick Pildes and to our commenters for pushing me to reframe the precise issue at stake in Bond and my precise position about it. I think we now have a better understanding of where we part ways.

Here is the question: If a non-self-executing treaty promises that Congress will do something that it otherwise lacks power to do, what happens? Can the President (with the consent of the Senate), just by making such a promise, thus empower Congress to do that thing, even if Congress lacked the power to do so the day before? Does the treaty increase the legislative power of Congress?

Now, Rick and I agree about the general importance of complying with treaties. And we agree that our pre-constitutional history of non-compliance was an important impetus for the Constitution. And yet — despite this important history that Rick keeps emphasizing — we also agree that the answer is generally no.

If the treaty promises that Congress will abridge the freedom of speech, despite the First Amendment, then Rick and I (and the Supreme Court) agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it. See Reid v. Covert.

If the treaty promises that Congress will suspend the writ of habeas corpus in peacetime, despite Article I, section 9, then Rick and I agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it.

If the treaty promises that Congress will commandeer state officials, despite Printz, then Rick and I agree that the answer is no. Congress lacked that power yesterday, and the treaty cannot confer it.

Now, what if the treaty promises that Congress will regulate INTRAstate commerce? What if, for example, it promises that Congress will regulate [...]

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Hans Kelsen on Occupation of Non-sovereign territory

By on January 29, 2013 6:09 pm in International Law, Israel, Treaties, Uncategorized, War and Armed Conflict

The Geneva Convention is generally thought to apply to Israel’s occupation of the West Bank – that portion of the League of Nations Mandate for Palestine previously occupied by the Jordan. This is important because the legal argument against settlements is that they violate Art. 49(6) of the Fourth Geneva Convention, a provision which did not reflect prior international law.

Art. 2 of the Convention provides:

In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Because the West Bank was not part of the sovereign “territory of a High Contracting Party” (or of any country) in 1967, and Israel has argued that “occupation” within the meaning of the Convention can only exist in such territory. Of course, most international lawyers disagree, though in the years after 1967, some very prominent ones agreed.

What is more interesting is what people thought the provision meant before 1967, that is, before they knew the identity of the alleged violator. There is very little written on this, and few have looked at pre-1967 sources. However, one quite serious (pro-Israel) blogger has unearthed this intriguing discussion from Hans Kelsen in 1952, which clearly does not assume that the occupation of non-sovereign territory has the same consequences as the occupation of sovereign territory:

The principle that enemy territory occupied by a belligerent in course of war remains the territory of

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

By on January 29, 2013 5:15 pm in Constitutional Law, Treaties

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 [...]

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Missouri v. Holland: The Intellectual History That Preceded The Holding

By on January 28, 2013 4:36 pm in Constitutional History, Constitutional Law, Treaties, Uncategorized

Our treaty debate now seems to have several threads running at once. To make things a bit clearer, I plan to separate a few threads out into separate posts. In this post, I hope at least one thread can be put to rest: the intellectual history thread.

I have criticized Justice Holmes for concluding — in one unreasoned sentence — that treaties can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is simply not so, as I demonstrated in my last post — citing a leading treatise, the most important congressional debate, a U.S. Supreme Court opinion, and, for good measure, an editorial in a prominent New York newspaper (which purports to express the general consensus of the time).

Rick seems to have two responses to this contrary evidence. First, he says it tends to support Ilya’s position, not mine. Second, it’s still not enough; Rick would like to see more. These are, I think, unpersuasive responses.

On the first point, it is not so; take a look at the sources and decide for yourself. But even if Rick were right about this, that would be of no help to him. Again, Ilya and I agree (with Justice Scalia) on the fundamental point that a treaty cannot increase the legislative power of Congress. All the sources cited clearly support that general point. They are [...]

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Peace Treaties & the War Power

By on January 27, 2013 5:19 pm in Constitutional History, Constitutional Law, Federalism, International Law, Treaties

Ilya’s response to Rick, that the Peace Treaty with Britain’s domestically applicable provisions could have been implemented through the foreign commerce power, seems right to me. But there may be another power that would have justified such legislation.

Peace is the flip side of war. Thus Congress’s power to decide on war also presumably includes the power to make peace, as Madison noted in the 1790s. Just as war does not need to be formally declared, peace can be established without a treaty. There may be international law advantages to a treaty, but peace could be created simply through a the cessation of hostilities, an executive agreement (such as an armistice), and so forth. Thus legislation dealing with the loose ends of a war would be independently justified, to some extent, by the War Power, as the Supreme Court recognized in Woods & Cloyd v. Miller.

Indeed, aside from the treaty with Britain, the Treaty Power would be an incomplete basis for legislating “peace conditions,” as it would potentially be difficult to exercise in cases of debilitatio, the collapse or disintegration of the enemy government.

The Constitution gives the Federal government numerous express powers for directly regulating transborder phenomenon, including war and foreign commerce. The difficulty with the potentially broad uses of the Treaty power today is that they deal with purely internal phenomenon, which are only of general “concern” to foreign countries. [...]

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The Constitution and the Enforcement of Peace Treaties

By on January 27, 2013 4:46 pm in Federalism, Treaties

In previous posts, I have argued that the Constitution does not give the federal government the power to make binding treaties on issues that are otherwise outside the scope of federal power (see here, here, and here). In his latest contribution to our debate, guest blogger Rick Pildes argues that this position would make it impossible for Congress to enforce peace treaties:

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 Constitution solves one of the fundamental problems to which the Constitution was specifically designed to be a solution.

I don’t think this is a difficult problem for my view at all. Article I of the Constitution gives Congress the power to “regulate Commerce with foreign Nations.” Borrowing money from foreign creditors is clearly “commerce with foreign nations” even under a relatively narrow definition of commerce. Therefore, enforcing this kind of term is perfectly consistent with my argument, as are other treaty terms regulating international commercial transactions. Obviously, my approach does bar some conceivable peace treaty terms. But the same is true of Rick Pildes’ own view, since he argues that treaties that require violations of the Bill of Rights are unconstitutional. Under that approach, for example, we could not enforce a treaty requiring the [...]

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Does Congress Have the Power to Enforce Treaties: Part IV

By on January 27, 2013 4:15 pm in Treaties, Uncategorized

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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The Conventional Wisdom Before Missouri v. Holland: Was It “Close To Universally Accepted” That a Treaty Could Increase The Legislative Powers of Congress?

By on January 22, 2013 12:09 am in Constitutional Law, Stare Decisis, Treaties

I have criticized Missouri v. Holland for concluding — in one unreasoned sentence — that a treaty can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is a bold claim to make without citation. I’m afraid that it is incorrect on each point.

First, treatises. Just five years before Missouri v. Holland, a leading treatise on the treaty power was written by Henry St. George Tucker — law professor, dean, congressman, ABA president. Tucker considered the precise claim at issue here: “that when a treaty may need legislation to carry it into effect, has embraced a subject which Congress cannot legislate upon, because not granted the power under the Constitution, that the treaty power may come to its own assistance and grant such right to Congress, though the Constitution, the creator of both, has denied it.” The treatise emphatically rejected this proposition, and for just the right reason: “[s]uch interpretation would clothe Congress with powers beyond the limits of the Constitution, with no limitations except the uncontrolled greed or ambition of an unlimited power.” Henry St. George Tucker, Limitations on the Treaty-Making Power, s 113, at 129-30 (1915).

Second, congressional debates. The most important such debate about the treaty power was the one surrounding the Louisiana Purchase. The debate is too involved to recreate here, and a wide variety of positions were expressed, but [...]

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Except the Bill of Rights: The Selective-Strong Treaty Position

By on January 21, 2013 9:19 pm in Constitutional Law, Constitutional Theory, Federalism, Global Governance/World Government, Treaties

Generally, the entire Constitution is seen as having equal weight; there are not tiers of authority (unlike in the constitution’s of many other nations, which make certain provisions suspendable). Thus I have always been puzzled by the dominant view, well-articulated by Prof. Pildes, which manages to account for Missouri v. Holland and Reid v. Covert by saying that treaties can expand legislative powers but not infringe the Bill of Rights.

I do not see a strong basis to exempt just the Bill of Rights from the the general rule of treaties, whatever that rule may be, for several reasons. Mostly, I see no way to neatly sever the Bill of Rights from the rest of the Constitution.

1) There is no other area, to my knowledge, where one can override enumerated powers but not the Bill of Rights. If anything, the latter are at least waivable by individuals, while the former are not.

2) The 10th Amendment, reflecting the principle of Federalism, is of course part of the Bill of Rights. So the position must be “the Bill of Rights, except the last bit,” which seems even more selective.

3) Could a treaty override Bill of Rights protections against action by the states? If not, this means treaties can override everything except Amends. I-VII, (maybe XI, see below), and XIV, D.P. Clause. That sounds even more selective.

4) Individual rights protections are contained elsewhere besides the Amends. I-VIII. Take the jury trial provision of Art. III: can treaties override that? (It is not a hypothetical question, as this would be the effect of signing the Rome Statute of the International Criminal Court.) What about the President’s pardon power? We can imagine the creation of mixed courts for treaty crimes, with convicts made unpardonable.

5) Now lets turn back [...]

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Reasons to Worry About Overreaching on the Treaty Power

By on January 21, 2013 6:10 pm in Federalism, Treaties

In his most recent thoughtful post on the treaty power, guest blogger Rick Pildes describes my position as follows:

Ilya… is concerned with Congress enter[ing] 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 this sort is not a valid exercise of the treaty power.

In actuality, however, Congress’ and the President’s motives in entering into a treaty are just one part of what I worry about. “Genuine reasons of foreign policy” and “gaining legislative powers that would otherwise be in the hands of the states” are not mutually exclusive categories. Congress or the president might genuinely believe that a treaty creates foreign policy benefits for the US, while also seeking to expand federal power relative to the states. Even if their motives are completely benevolent and they have no conscious desire to make a power-grab, they could still end up violating the Constitution in ways that cause more harm than good and set a bad precedent for the future. This may only be a modest-size problem so long as federal power under the Commerce and Necessary and Proper Clauses is interpreted extraordinarily broadly. But, in my view, that interpretation is over-broad and needs to be pared back. When and if that happens, the treaty power will become a more tempting back door for circumventing constitutional limits on federal power. Even in the status quo, various scholars and activists have proposed the treaty power as a tool for [...]

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The Legal Status of Treaties that Require Violations of the Constitution

By on January 20, 2013 10:24 pm in Federalism, Treaties

Co-blogger Nick Rosenkranz and I agree on most of the practically important issues regarding the constitutional status of treaties. But in his insightful recent post responding to my most recent comment on the subject, Nick does identify one theoretically interesting difference between us. He believes that treaties that require action that violates the Constitution are in some sense legally valid, whereas I do not:

If the President signs a treaty promising that Congress will enact certain legislation, but Congress would ordinarily lack the power to enact that legislation, what happens? Missouri v. Holland seems to say that the treaty automatically gives Congress the legislative power at issue. Ilya and I both disagree.

Ilya would say that, under these circumstances, the treaty itself is void. He would say that the President has no power to make such a promise. In his view, the treaty power only empowers the President to make promises that the federal government knows it can keep.

In my view, the answer is different. I believe that the President can make such a promise, even though Congress lacks present power to keep it. Making such a promise is not generally advisable, to be sure, but it is permissible. To see why, consider that for every person, and every politician, and every government, the capacity to make promises exceeds the capacity to keep them. Many of our promises may turn on circumstances beyond our control, including the actions of third parties.

To be clear, I don’t doubt that the president can make that promise. I just deny that the promise has any legal validity of the kind that would be enjoyed by a treaty that only requires action within the constitutional limits of federal power. It has the same status as any other promise to do something we have [...]

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Somin on Bond

By on January 20, 2013 1:58 pm in Constitutional Amendments, Constitutional Law, Treaties

Ilya Somin has a thoughtful post on U.S. v. Bond here. I have only one quibble with what he has said. Ilya agrees with Justice Scalia and me that a treaty cannot increase the legislative power of Congress. But he reaches this conclusion in a slightly different way. The difference is actually an important window into this issue.

If the President signs a treaty promising that Congress will enact certain legislation, but Congress would ordinarily lack the power to enact that legislation, what happens? Missouri v. Holland seems to say that the treaty automatically gives Congress the legislative power at issue. Ilya and I both disagree.

Ilya would say that, under these circumstances, the treaty itself is void. He would say that the President has no power to make such a promise. In his view, the treaty power only empowers the President to make promises that the federal government knows it can keep.

In my view, the answer is different. I believe that the President can make such a promise, even though Congress lacks present power to keep it. Making such a promise is not generally advisable, to be sure, but it is permissible. To see why, consider that for every person, and every politician, and every government, the capacity to make promises exceeds the capacity to keep them. Many of our promises may turn on circumstances beyond our control, including the actions of third parties.

I might contract to build you a house on a particular tract of land by a particular date. Executing the contract might require circumstances, like good weather, that are not within my control. It might also require legal changes, like zoning waivers, that are also not within my control. This does not mean that we cannot make such promises. It merely means that [...]

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