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 – […]
Archive | Treaties
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 […]
The Limits on the Treaty Power
By Prof. Rick Pildes (NYU), guest-blogging 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 […]
Missouri v. Holland vs. Reid v. Covert
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 […]
Hans Kelsen on Occupation of Non-sovereign territory
By Eugene Kontorovich 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 […]
There Is No Basis In Constitutional Text For the Claim That A Treaty Can Increase The Legislative Powers of Congress
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 […]
Missouri v. Holland: The Intellectual History That Preceded The Holding
By Nick Rosenkranz 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 — […]
Peace Treaties & the War Power
By Eugene Kontorovich 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 Constitution and the Enforcement of Peace 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 […]
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: […]
The Conventional Wisdom Before Missouri v. Holland: Was It “Close To Universally Accepted” That a Treaty Could Increase The Legislative Powers of Congress?
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 […]
Except the Bill of Rights: The Selective-Strong Treaty Position
By Eugene Kontorovich 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 […]
Reasons to Worry About Overreaching on the Treaty Power
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 […]
The Legal Status of Treaties that Require Violations of the Constitution
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 […]
Somin on Bond
By Nick Rosenkranz 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 […]