Either possibility can be prevented if sufficient limits are placed on the federal governments authority to make and implement treaties. 16. 177. And it would be doubly absurd to condition this displacement of state sovereignty on a foreign nations assent. First it creates a national government consisting of a 111. Medelln therefore prevented the President from using a treaty to run roughshod over the courts and the states. CQ Transcriptions, Sen. Chuck Schumer Holds a Hearing on the Nomination of Judge Sonia Sotomayor to Be an Associate Justice of the U.S. Supreme Court, Wash. Post (July 14, 2009, 4:24 PM), http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071402630.html. . This Essay will proceed in five parts. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). 31. A non-self-executing treaty will raise questions about Congresss power to implement these treaties, because they will require congressional implementation to impose domestic obligations on individuals. See, e.g., United States v. Comstock, 130 S. Ct. 1949, 196768 (2010) (Kennedy, J., concurring in the judgment) (It is of fundamental importance to consider whether essential attributes of state sovereignty are compromised by the assertion of federal power under the Necessary and Proper Clause . For example, Congress has the power to tax and spend, to regulate commerce with foreign nations and among the several states, and to declare war.90 The Constitution therefore withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.91. II, 2) (internal quotation marks omitted). Bond v. United States, which is currently pending before the U.S. Supreme Court, provides a concrete set of facts showing how pervasive the treaty power could be without meaningful constitutional restraints. 123. If the Tenth Amendment never limits the Presidents authority to enter into a non-self-executing treaty, then Missouri v. Holland would have correctly held that the Tenth Amendment did not deny the President authority to enter into the non-self-executing Migratory Bird Treaty. Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. The Reid plurality quoted an 1890 Supreme Court precedent for the proposition that a treaty cannot take away state territory without the states consent: The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. That said, Missouri v. Holland probably would have to be overruled if one believes that Congress lacked the Commerce Clause authority to implement the Treaty legislatively. 49. So it is a non-self-executing treaty that does not automatically have effect as domestic law.57, The U.S. Senate ratified the Convention in 1997.58 A year later, Congress acted to implement the Convention by creating domestic law that would prohibit individuals from violating the Convention, the Chemical Weapons Convention Implementation Act of 1998.59. Transit Auth., 469 U.S. 528, 55054 (1985) (discussing the role of constitutional structure and congressional legislation in preserving state interests). Indeed, two-thirds of the Senate may agree to the treaty, but that does not necessarily reflect the Senates view on the propriety of implementing legislation. A four-Justice plurality acknowledged this principle in Reid v. Covert,95 holding that treaties authorizing military commission trials of American citizens abroad on military bases could not displace Fifth and Sixth Amendment criminal procedure rights.96 Justice Black, joined by Chief Justice Warren, Justice Douglas, and Justice Brennan, recognized: [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. One frequent objection to structural limits on the Treaty Clause power is that they do not give the federal government sufficient latitude to negotiate peace treaties with concessions.133 This objection posits that the federal government must have authority to preserve the union by getting out of war through any means and that it is absurd to think that ceding state territory is a violation of state sovereignty.134. There would be no reserved state powers if agreements with foreign nations could increase Congresss authority beyond its enumerated powers. . If the ultimate power resides with the people, then the people control government, rather than the government controlling the people. The legal academy has read Missouri v. Holland as rejecting any and all structural constitutional limitations on the Presidents Treaty Clause power. !PLEASE HELP! Can prove laws to be 82. 138. The Third Circuit held that Bond lacked standing to raise this argument,78 and the U.S. Supreme Court unanimously reversed in finding that Bond did have standing to challenge the Act as applied to her.79 On remand, the Third Circuit rejected Bonds constitutional argument on the merits, finding that Congress had authority to enact the Chemical Weapons Convention Implementation Act under the Necessary and Proper Clause.80 The Third Circuit quoted Justice Holmess 1920 opinion, Missouri v. Holland, for the proposition that, if a treaty is valid, there can be no dispute about the validity of the statute [implementing it] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. It would have been absurd for the Framers to implement multiple checks and balances for creating a system of dual sovereignty, and to explicitly delineate the Presidents and Congresss powers, only to allow the Treaty Clause power to completely displace all state sovereign authority. Id. . Because we must never forget that it is a constitution we are expounding, the Court must remember the Constitutions great outlines and important objects.181 The Framers genius in dividing sovereign authority between the federal and state governments certainly qualifies as one of the great outlines and important objects that Chief Justice Marshall deemed necessary for interpreting the Constitution. Reid v. Covert, 354 U.S. 1, 1718 (1957) (plurality opinion) (quoting Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (internal quotation marks omitted)). 98. Having established the proper framework and doctrines for considering challenges to presidential and congressional treaty powers, we can return to how the Supreme Court should resolve Bond v. United States. 1996) (footnotes omitted). But perhaps, if called to do so, the Court would adopt a doctrine similar to the City of Boerne congruence-and-proportionality doctrine,147 under which the subject matter of the implementing legislation could not substantially exceed the treatys subject matter. Rosenkranz, supra note 13, at 1878; see id. But Americans did not give their federal government carte blanche to create whatever laws the federal government chooses. A balance of power. The Roberts Court, too, has continued to enforce structural limits on the balance of power between the federal and state governments.175 These developments may very well render Missouri v. Holland a doctrinal anachronism that stare decisis should not save.176. 75 (Alexander Hamilton), supra note 34, at 449. Federalism limits government by creating two sovereign powersthe national government and state governmentsthereby restraining the influence of both. III, 1. Can a president make a treaty with another nation? Sovereignty should be the touchstone of any debate over the limits on the treaty power. But Medelln involved an unusual fact pattern, and many questions remain about the scope of the federal governments treaty power. [A]llocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States . The Third Circuit in Bond considered the governments Necessary and Proper Clause claim only, declining to reach any arguments about other enumerated powers like the Commerce Clause.179 But it is worth briefly considering the Commerce Clause, because since 1937, the Commerce Clause has been the enumerated power most often used to justify congressional acts. A 1907 memorandum approved by the Secretary of State stated that the limitations on the treaty power that necessitate legislative implementation may "be found in the The Senate does not ratify treaties. See The Federalist No. . Before Congress can implement a treaty through legislation, the President must create a valid treaty. See U.S. Const. Id. The answer is the legislative branch can approve treaties to settle argument that are unconstitutional. L. Rev. . [the] Power . Instead, they reserved the unenumerated powers to the states. at 1892 (emphasis omitted) (quoting Prigg v. Pennsylvania, 41 U.S. (16 Pet.) _Approves_ presidential appointments for _judges/justices_. That realization, though, does not address other important questions about treaties. Id. In the words of Justice Kennedy: The Framers split the atom of sovereignty.30 That is, the Framers ingeniously divided governmental power through various mechanisms, such as the separation of powers and federalism. (emphasis omitted) (quoting Henkin, supra note 102, at 190). Legislative Check How does it balance power in the government? See id. This competing structural argument also assumes a doubtful premise: that the federal government must have unlimited powers to implement treaties it believes are in the public interest. If the President validly creates a treaty, another question regarding the federal governments treaty powers arises: are there limits on Congresss ability to implement duly made treaties? But even before the Bill of Rights was created, the Constitution painstakingly enumerated the limited powers of the federal government on the basis that states would retain authority in a system of dual sovereignty. . 52. Copy. If Congress has the power to create a federal criminal code that reaches domestic disputes like the one in Bond, then it is unclear how the states retain any police power that cannot be exercised by the federal government. 134. See id. in part, [as] an end in itself, to ensure that States function as political entities in their own right.88 Preserving the sovereign dignity of the states, though, was not the only reason to construct the federal government as one of enumerated powers. Id. Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) Holden v. Joy, 84 U.S. (17 Wall.) After all, the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.115 Treaties are agreements like contracts, and all law students learn that contracts can be breached for many reasons, including efficiency. Congresss implementing statute went far beyond the purpose of the Convention by covering much more than weapons of mass destruction. 2012), cert. challenged provisions . 4 (John Jay), supra note 34, at 40 (emphasis omitted). 18 U.S.C. . may justly be pronounced the very definition of tyranny.46. 155. 124. To hold otherwise would be to undermine the constitutional structure created at the nations founding. 139. The Federalist No. 75 (Alexander Hamilton), supra note 34, at 450. As the Court has reminded us in the past two decades, there are still limits on this power. 64 (John Jay), supra note 34, at 388. The most commonly cited enumerated powers supporting treaties are (1) the Presidents Treaty Clause power, (2) Congresss Commerce Clause power, and (3) Congresss Necessary and Proper Clause power. The first power implicates a treatys creation, while the latter two involve a treatys implementation. How does the legislative branch approving treaties balance the government? Id. The Constitution gives the Senate the power to approve for ratification, by a two-thirds vote, treaties negotiated by the president and the executive branch. Because treaties are the supreme law of the land, they could potentially become a vehicle for the federal government either to give away power to international actors or to accumulate power otherwise reserved for the states or individuals. 142. 34. Article II delineates the Presidents powers at a higher level of generality, but those powers are nevertheless still enumerated. PLEASE HELP! (During wartime, however, the President has the power to cede state territory by refusing to defend it (or by defending it and losing). . Many view it as granting the federal government nearcarte blanche authority to make and implement treaties. As Rosenkranz has shown, though, that contention is factually inaccurate, because the words enforce treaties were struck from the preceding Militia Clause in Article I, Section 8, and not the Necessary and Proper Clause. art. I, 8, art. 120. .102, The Migratory Bird Treaty at issue in Missouri v. Holland was a non-self-executing treaty.103 Rather than challenge Congresss authority to pass a statute implementing this treaty, Missouri challenged the Presidents authority to make the treaty in the first place.104 Missouri argued that the Presidents power to make treaties was limited by the Tenth Amendment, such that a treaty could not address subject matter that did not fall within Congresss enumerated legislative powers.105 Justice Holmes phrased the question presented, with evident disdain, as, The treaty in question does not contravene any prohibitory words to be found in the Constitution. . Note, however, that Senators were originally chosen by state legislatures rather than through direct election. 229229F (2012); 22 U.S.C. 125. As Rosenkranz has noted, Missouri never argued that a treaty could not expand Congresss power; rather, Missouri only argued that the Migratory Bird Treaty itself was invalid.157 Consequently, the issue of Congresss power to legislate pursuant to treaty received no analysis whatsoever, either in the district court opinions or in the Supreme Court in Missouri v. Holland.158. at 43031 (describing legislation and regulations implemented in compliance with the treaty agreement). Missouri v. Holland, 252 U.S. 416, 43334 (1920). 2009), revd, 131 S. Ct. 2355. See Chemical Weapons Convention, supra note 53, art. Approve treaties negotiated by the executive branch. Professors Gary Lawson and Guy Seidman have presented a distinct argument that the Presidents treaty power should be limited by his other enumerated executive powers. '81 The Supreme Court granted certiorari82 and has heard argument in what could be one of the most important treaty cases it has ever considered. 85. Why did the Treaty of Paris fail to bring peace to North America? The treaty power is a carefully devised mechanism for the federal government to enter into agreements with foreign nations. See, e.g., Lawson & Seidman, supra note 125, at 6267. . Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. 1. The Federalist No. art. But it bears mentioning that one could imagine a middle position that avoids some of the deleterious consequences of limiting the Presidents Treaty Clause power. This Essay suggests that Missouri v. Holland can be construed simply as rejecting a facial challenge to a particular treaty, which may have validly covered some subject matter falling within Congresss Commerce Clause authority. See Medelln v. Texas, 552 U.S. 491, 50405 (2008). That is precisely why the Court subsequently backtracked from its truism comment, noting that [t]he Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States integrity or their ability to function effectively in a federal system.124 One possible implication of the Courts truism remark is that there are no powers reserved exclusively to the states. 38. !PLEASE HELP! The first power implicates a treatys creation, while the latter two involve a treatys implementation.
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