Yesterday, the Supreme Court granted certiorari in United States v. Bond, which raises the question of whether a treaty can increase the legislative power of Congress. Guest Blogger Rick Pildes has already noted the cert grant here, and Ilya Somin posted his thoughtful take on the case here. I merely add that I am delighted […]
Archive | Treaties
Bond v. United States and the Treaty Power
As guest blogger Rick Pildes notes, the Supreme Court on Friday agreed to hear Bond v. United States, an important case addressing the issue of whether international treaties can authorize Congress to legislate on issues that would otherwise be under the exclusive control of state governments. This is one of the very rare cases that […]
There Is No Textual Foundation For The Claim That Treaties Can Increase The Power of Congress
By Nick Rosenkranz on January 16, 2013 3:31 pm in Constitutional History, Constitutional Law, Tenth Amendment, Treaties
Rick has offered several articulate criticisms of the argument in my treaty article, and I will respond to his specific criticisms in a subsequent post. For now, though, I would just point out that these criticisms seem to put the cart before the horse. Rick has not yet offered any textual basis for his claim […]
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, […]
The Framers Gave Congress a Robust List of Powers; They Did Not Provide That These Legislative Powers Can Be Increased By Treaty
By Nick Rosenkranz on January 16, 2013 8:57 am in Constitutional History, Constitutional Law, Treaties
Rick Pildes has posted useful historical background for our debate about whether treaties can increase the legislative power of Congress. I agree with almost everything that he has said. Under the Articles of Confederation, Congress lacked the power to enforce the Treaty of Peace with Great Britain in 1782, and that defect in the Articles […]
Does Congress have the Power to Enforce Treaties? Part I
By Prof. Rick Pildes (NYU), guest-blogging on January 14, 2013 6:58 am in Constitutional History, Constitutional Law, Constitutional Theory, International Law, Treaties
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 […]
Treaties, the Law of Nations, and Foreign Commerce
By Eugene Kontorovich on January 13, 2013 3:50 pm in Commerce Clause, Constitutional Law, International Law, Textualism, Treaties, War and Armed Conflict
I’m delighted to see Rick Pildes will be guest-blogging, and the exchange with Nick on the Treaty Power will be a treat. I would invited them to consider an aspect of the question that has long interested me: What is the relationship between the Offenses Power, the Treaty Power, and the Foreign Commerce power? All […]
Introducing Guest-Blogger Prof. Rick Pildes of NYU, to Debate Whether a Treaty Can Increase the Legislative Power of Congress
At the Federalist Society Faculty Convention in New Orleans last week, Prof. Rick Pildes of NYU and I debated whether a treaty can increase the legislative power of Congress. (Video here.) In a case called Missouri v. Holland (1920), the Court, per Justice Holmes, seemed to say that the answer is yes. In an article […]
Bleg on U.N. extreme interpretations of treaties, and of extreme interpretations of Americans with Disabilities Act
Earlier this week, the Senate rejected the proposed U.N. Convention on the Rights of Persons with Disabilities. Among the reasons for the rejection was fear that, even if the Convention’s language itself was acceptable, the future interpretation of the Convention would be in the hands of a U.N. bureaucracy, which might invent novel or excessive […]
What the UN Palestine Vote Means and What It Doesn’t
By Eugene Kontorovich on November 29, 2012 8:26 pm in International Law, Israel, Treaties, Uncategorized
1) It should be no surprise that 130-odd countries took the rather technical step of of voting recognize Palestine as a “non-member” in the U.N. General Assembly. That is roughly the number of countries that already directly recognize Palestine as a state! If they have already actually recognized the state themselves, voting to extend such […]
Drug Treaties Do Not Empower Congress To Override Or Repeal State Referenda Legalizing Marijuana
In a press release last week, the President of the International Narcotics Control Board, Raymond Yans, asserted that the recent referenda legalizing marijuana in Colorado and Washington “are in violation of the international drug control treaties.” He is almost certainly wrong about that; federal drug laws keep the United States in compliance with such treaties […]
First item of new post-election “flexibility”: U.N. gun control
As reported by the Second Amendment Foundation, this morning the Obama administration joined a U.N. majority which called for convening a new conference to create a global Arms Trade Treaty.
Federalism, Bond v. United States, and the Treaty Power
When we last we heard of the case of Bond v. United States, the Supreme Court had ruled that a criminal defendant can challenge the constitutionality of a federal statute she was charged with violating on the grounds that it exceeds the scope of congressional power under the Constitution. In a rare unanimous decision on […]