Archive | Treaties

Treaties Can Create Domestic Law of Their Own Force, But It Does Not Follow That Treaties Can Increase The Legislative Power of Congress

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 [...]

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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 comes before the Supreme Court twice. I discussed the previous Bond ruling – an important federalism decision – here:

In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. In addition to setting boundaries “between different institutions of government for their own integrity,” constitutional federalism also “secures to citizens the liberties that derive from the diffusion of sovereign power.”

I covered some of the issues at stake in the present iteration of Bond in this post:

In my view, unconstrained federal power under the treaty clause isn’t as dangerous as unconstrained federal power under the Commerce Clause or the Necessary and Proper Clause. A treaty only becomes law if ratified by a two-thirds supermajority of the Senate, which is a high hurdle to overcome, and in practice usually requires a broad national consensus. Nonetheless,… I think the power to make treaties is best understood as a power allowing the federal government to make commitments regarding the use of its other enumerated powers, not a power that allows the federal government to legislate on whatever subjects it wants, so long as the issue is covered by a treaty. Among other things, the latter would enable the federal government to circumvent limits on the scope of its [authority] by paying off a foreign power (e.g. – a

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There Is No Textual Foundation For The Claim That Treaties Can Increase The Power of Congress

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 that treaties can increase the legislative power of Congress.

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?

The conventional view (bolstered by a celebrated bit of purported drafting history, which proved to be false; see Executing the Treaty Power at 1912-18) is that this mechanism derives from a combination of the Necessary and Proper Clause and the Treaty Clause. (I believe that Rick acceded to this conventional view at our debate two weeks ago in New Orleans.) The Necessary and Proper Clause provides: “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Treaty Power is certainly an “other Power[] vested by th[e] Constitution.” The Treaty Clause provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

So the Treaty Power [...]

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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, remember, is that a treaty cannot generate any legislative power to implement the treaty that Congress otherwise would not have.

 First, Nick’s approach accepts that if the Senate and President choose to make a treaty self-executing, then that treaty can indeed displace the states’ traditional legislative powers.  Thus, under Nick’s approach, a treaty to eliminate the death penalty that was self-executing would validly and constitutionally have the power to displace the states’ traditional police-power authority to decide for themselves whether to adopt the death penalty – even if Congress would lack legislative power to do so absent the treaty.  In other words, the Senate and the President can jointly ensure faithful compliance with a treaty obligation by making the treaty self-executing.

It is easy to overlook this fact in responding to Nick’s “solution” to the treaty problem.  But because Nick’s approach would apply only if the President and Senate choose not to make a treaty self-executing, so that Congress must enact legislation to implement the treaty as domestic law, much of the rhetorical force behind Nick’s argument, as well as the constitutional foundation for it, seems to me to dissipate.

On the rhetorical side, Nick invokes concerns such as the one he quotes Justice Scalia as expressing at a recent oral argument:  can it be the case that if the President and Senate enter into a treaty with Zimbabwe, Congress now has legislative powers it would not otherwise have to enforce that treaty?  But [...]

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The Framers Gave Congress a Robust List of Powers; They Did Not Provide That These Legislative Powers Can Be Increased By Treaty

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 was indeed part of the impetus for the Constitution.

This is helpful context, and it is certainly worth noting. I would just add a few sentences to, as it were, put this context in context. Under the Articles of Confederation, Congress lacked the power to do a great many important things — perhaps most importantly, it lacked the power to regulate interstate and international commerce. The inability to enforce the Treaty of Peace was a specific instantiation of this general impotence of Congress. And it is this general weakness that was the overriding impetus for the Constitution.

The Constitution remedied this general defect by giving Congress a robust array of legislative powers that were lacking in the Articles. This impressive list of powers seemed more than sufficient to meet the needs of the nation. Indeed, the primary concern of the antifederalists was that this list went far too far.

But in fact, the Constitution went even further. If at some future date, this list of powers, fearsome as it was, should, for whatever reason, prove insufficient, Article V provides a mechanism — really four distinct mechanisms — by which the Constitution could be amended and Congress’s legislative power could be increased even further. These mechanisms of Article V have, in fact, been utilized seven times to increase Congress’s legislative power.

But the question on the table is whether — in addition to the enumerated powers, and in addition to the four elaborate and express [...]

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Does Congress have the Power to Enforce Treaties? Part I

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 the cert. petition challenges the constitutional power of Congress to enforce the international Chemical Weapons Convention, a treaty the United States entered into in 1993.  The Court has already re-listed Bond an exceptional six times for the Court’s consideration at conference – a strong signal that at least some Justices consider these issues extremely serious ones.

The most momentous argument the Bond petition raises follows the novel solution to “the treaty problem” developed in a provocative article by Nick Rosenkranz, Executing the Treaty PowerDistilled to a sentence, Nick’s argument (which he will explain more fully in his own posts) is that a treaty cannot change the balance of federal-state power established in Art. I, which enumerates Congress’ specific powers.  More specifically, if Congress legislates to enforce a treaty, Congress is limited to the powers it otherwise has in Art. I; the treaty itself does not permit Congress to enact legislation it would otherwise be constitutionally forbidden to enact.  In a few posts, I’ll suggest why I think Nick’s analysis is ultimately unconvincing.

The treaty-power issue is part of the larger set of questions about how the outward looking aspects of the Constitution — its structure of powers for international relations, foreign affairs, war, and the like — relate to the Constitution’s inward looking structure of powers over purely domestic matters.  In starting to think about these issues, it’s essential to understand  that ensuring that the United States would be able to credibly make [...]

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Treaties, the Law of Nations, and Foreign Commerce

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 three might overlap at their edges (assuming they are not entirely congruent), and the extent of the overlap would say a lot about the extent of the other powers. If for example, the Foreign Commerce power is even broader than the Interstate one, then the scope of the treaty power becomes even less important.

Hamilton, as I’ve mentioned before saw the Treaty Power as in some ways ways being not coterminous with the Foreign Commerce power, and my understanding of the Offenses Power has always been that it was distinct from the Treaty Power. An example of how such delimitations might matter would be whether the courts can consider, as they sometimes do, unratified treaties in determining the “Law of Nations.”

UPDATED with minor edits. [...]

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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 in the Harvard Law Review, Executing the Treaty Power (2005), and again in New Orleans, I argued that the correct answer is no.

The issue is of great theoretical importance, because, at least in my view, Missouri v. Holland is in apparent tension with the doctrine of enumerated powers and the basic structural principle of limited federal legislative power. The issue is also of great and increasing practical importance, as we enter into ever more international legal commitments, many of which implicate what would seem to be paradigmatic state and local matters, far from traditional international concerns.

The debate is also timely, because there is a certiorari petition currently pending at the Supreme Court, United States v. Bond, which raises this exact issue. (I filed an amicus brief on behalf of the Cato Institute, urging the Court to grant the petition.) Bond has been relisted six times, which is unusual – suggesting that at least some Justices are interested.

In our debate in New Orleans, Rick offered the best and most articulate defense of Missouri v. Holland that I have ever heard. But neither of us landed a knockout punch in New Orleans, and so Rick suggested that we continue our debate here, with perhaps three or four posts each. On behalf of Eugene and the rest of the Conspirators, I am delighted to introduce Rick as a guest-blogger for this purpose. [...]

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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 interpretations. Therefore, I respectfully request commenters to describe previous situations in which a UN body has, in the commenter’s view, made an inappropriate interpretation or application of a Convention of Treaty.

And since the CRPD was modeled, in part on the U.S. Americans with Disabilities Act, commenters are also welcome to point out some of what they consider to be the most extreme, inappropriate, or unexpected applications and interpretations of the ADA itself.



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What the UN Palestine Vote Means and What It Doesn’t

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 recognition for some particular purpose is hardly precedent-making. (Palestine’s international-recognition level rivals Israel’s.)

2) The apparent diplomatic victory is itself a consolation prize for the collapse of Abbas’ bid last year for actual U.N. membership for Palestine, which was rejected at the Security Council. If that effort was to be a “diplomatic tsunami,” as Israel’s defense minister warned, the current ploy is at most a chill breeze.

3) The vote must be seen in the context of a long history of past anti-Israel resolutions in the GA. These illustrate both the automatic majority such resolutions enjoy, and their unimportance to actual events. For example, in the 1970s, the parliament of nations overwhelmingly agreed that Zionism is a form a racism, and thus the entire country is illegitimate. In 2009, the GA adopted a resolution that concluded Israel intentionally sought to slaughter innocent Palestinian civilians in the Gaza War – a resolution based on the Goldstone report, which has since been retracted by its eponymous author.

4) There is nothing new even in the European position. Since 1980 Europe has maintained that the lands occupied by Jordan and Egypt in their 1948-49 war against Israel is actually
“Palestinian territory,” which Israel must leave. The European votes are consistent with their accord with almost all major Palestinian demands.

5) The theory that some European votes were motivated by the recent Gaza campaign shows that Israel can’t just win. It gets rocketed when it leaves territory, [...]

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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 regardless of changes in state law. But Yans then seems to suggest that the federal government could somehow override or repeal the state referenda, on the strength of these treaties. He’s almost certainly wrong about that too, as Jacob Sullum explains over at Reason (citing my Harvard Law Review article, Executing the Treaty Power). [...]

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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 a federalism issue, the Court ruled that “[f]ederalism secures the freedom of the individual” as well as the prerogatives of state governments. Therefore, individuals as well as states have standing to raise federalism-based challenges to federal statutes.

However, the case is not over. When it was returned to the lower federal courts for a decision on the merits, the US Court of Appeals for the Third Circuit ruled that the statute under which Bond was convicted is authorized by an international treaty. That raises the longstanding question of whether the federal government’s power to make treaties authorizes Congress to legislate in areas that would otherwise be beyond its authority. The Cato Institute has filed an amicus brief urging the Supreme Court to hear this new phase of the litigation and reverse the Third Circuit. The brief was authored by Georgetown law professor Nicholas Rosenkranz (a leading academic expert on the constitutional law of treaties), Ilya Shapiro (no relation), and Trevor Burrus. The brief and a summary of its argument are available here:

In 2010, the Supreme Court decided United States v. Bond, a case that seems right out of a soap opera. Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox…. [A] federal prosecutor charged Bond with violating a

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