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 that the Court has taken the case. Missouri v. Holland addressed this issue in one unreasoned sentence; I believe that it deserves a far more thorough treatment.
As it happens, Rick and I are in the midst of debating this very issue. Rick set the stage with some historical background, and I largely agreed with – but slightly re-characterized – his account. Rick offered some structural or pragmatic reasons to believe that treaties can increase the legislative power of Congress. I contended that these arguments put the cart before the horse.
The first question, I suggested, is whether there is any basis in constitutional text for this proposition. (And, in light of the Tenth Amendment and the enumeration of legislative power, the burden of proof surely lies with anyone claiming that Congress’s legislative power can be expanded, virtually without limit, by treaty.) The conventional view is that the textual basis may be found in a combination of the Treaty Clause and the Necessary and Proper Clause. I have attempted to explain why this is not so.
And the absence of textual support is unsurprising, because the proposition itself is in such deep tension with the basic structural axioms of the Constitution. The Constitution goes to great pains to limit and enumerate the powers of Congress. It emphasizes that the powers of Congress (unlike the powers of the President and the courts) are only those “herein granted.” It creates [...]