. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.106, The Court held, by a vote of seven to two, that the Tenth Amendment did not render the treaty invalid.107 Justice Holmes reasoned that [i]t is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could.108 The Court did not decide whether the two lower federal courts had correctly invalidated the pre-treaty migratory bird statutes as exceeding Congresss enumerated powers.109 But it did identify the purportedly national and international character of migratory birds: The subject-matter is only transitorily within the State and has no permanent habitat therein.110. 106. The Court, however, has suggested that this may not be absurd. Ins. Co., 133 S. Ct. 1659, 1664 (2013). Hope it helped! 1. v. Sebelius, 132 S. Ct. 2566, 260103 (2013) (opinion of Roberts, C.J. 163. 2, 1992). With treaties potentially supplanting federal and state governmental authority, the President and Senate should carefully scrutinize all treaties, as a policy matter. Medelln v. Texas, 552 U.S. 491, 525 (2008). 229F(1)(A); see also Chemical Weapons Convention, supra note 53, art. The United States Constitution 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 (Article II, section 2). United States v. Darby, 312 U.S. 100, 124 (1941). 4. I. . . 75 (Alexander Hamilton), supra note 34, at 450. As with limits on the Presidents Treaty Clause power, the best arguments in favor of expansive congressional power to implement treaties involve wartime hypotheticals about peace-treaty concessions.166 Many of those concerns have already been discussed. 1, 57. 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)). Whether one couches this as a Tenth Amendment or a structural argument, the basic point is the people, acting in their sovereign capacity, delegated only limited powers to the federal government while reserving the remaining sovereign powers to the states or individuals. (emphasis omitted)). But the governments power emanates from the sovereign will of the people. Part III sets forth the central thesis of this Essay: courts should enforce constitutional limits on the Presidents power to make treaties and Congresss power to implement treaties by preventing either from infringing on the sovereignty reserved to the states. 146. The facts of Missouri v. Holland are striking and provide a roadmap for how the federal government could use treaties to aggrandize power otherwise reserved for the states: In 1913, Congress enacted a statute to regulate the hunting of migratory birds. PLEASE HELP!!! The Federalist No. Either possibility can be prevented if sufficient limits are placed on the federal governments authority to make and implement treaties. Which branch has the power to approve treaties? They correctly believed that societies could not magically progress to a point where humans constantly looked out for a common good divorced from self-interest. 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. -First, it passes an authorization bill that establishes a program and says how much can be spent on the program. 159. Which house has the power to consider treaties with foreign countries? 211, 243 (1872). See, e.g., Martin S. Flaherty, Are We to Be a Nation? The power of the Executive Branch is vested in the President of the United States, who also acts as head of state and Commander-in-Chief of the armed forces. at 1912. 1277, 130809 (1999). at 265961 (joint dissent). then the entire federal structure, apart from a few fortuitously worded prohibitions on federal action in Article I, Section 9, is a President and two-thirds of a quorum of senators (and perhaps a bona fide demand from a foreign government) away from destruction.125. Perhaps such an implementing statute would be unconstitutional as applied to birds that remain intrastate (if those birds would even be migratory or covered by the statute), because Congresss enumerated powers might not extend that far.170 But the Courts subsequent doctrine on facial challenges clarifies that, outside the free speech context, the Court cannot invalidate a statute in whole unless the statute is unconstitutional in all of its applications.171 The Court in Missouri v. Holland, therefore, could have correctly rejected a facial challenge to Congresss implementation of the Migratory Bird Treaty. During Justice Sotomayors Senate Judiciary Committee confirmation hearing, she rightly stated that American law does not permit the use of foreign law or international law to interpret the Constitution.1 But she also correctly recognized that some U.S. laws rely upon certain international law sources.2 For instance, the Alien Tort Statute3 allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.4. 20. The United States agreed in the Convention, however, to enact domestic laws addressing chemical weapons.178 And Congress purported to enact such laws through the Chemical Weapons Convention Implementation Act of 1998. Sovereignty, the Treaty Power, and Foreign Affairs, III. XYZ Affair 5. The Federalist No. 30. 143. Nor does the Tenth Amendment simply state a truism, as the Supreme Court infamously surmised in 1941.123 The Tenth Amendment was included in the Bill of Rights to recognize that there are, in fact, significant powers reserved to the states. Transit Auth., 469 U.S. 528, 55054 (1985) (discussing the role of constitutional structure and congressional legislation in preserving state interests). Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.155, And a few years later, Justice Story, writing for the Supreme Court, reasoned that the Necessary and Proper Clause did not give Congress carte blanche power to implement treaties: [A]lthough the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect.156, With these precedents on the books, Justice Holmess single line from Missouri v. Holland seems quite out of place. At the very least, the opinion should have grappled with these precedents if it was going to make broad pronouncements about Congresss ability to implement treaties. If no enumerated power justifies the creation or implementation of a treaty, the federal government is acting beyond its delegated authority, thus violating the sovereignty of the states and the people. Does the House have the power to approve foreign treaties? It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.135, Regardless, even if the President must have the ability to cede state territory as part of a peace treaty, Professors Lawson and Seidman respond by arguing that this could be cabined as a narrow exception to Tenth Amendment state sovereignty limits on the Treaty Clause power. 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. Before Congress can implement a treaty through legislation, the President must create a valid treaty. 59. If the federal government could evade the limits on its powers by making or implementing treaties, then our system of dual sovereignty would be grievously undermined. 64 (John Jay), supra note 34, at 388. Medelln, 552 U.S. at 499 (alterations in original) (quoting Vienna Convention, supra note 19, art. . 119. 40. 1, 1; U.S. Const. National De These and other treaties could be used to infringe on state sovereignty. at 1900 (emphasis omitted) (quoting Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) The 1998 Act adopted the Conventions definition of chemical weapon, which covers any toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter.62 And toxic chemical, in turn, includes any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.63 The statute does include an exemption for a toxic chemical intended for [a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.64 Nevertheless, the chemical weapons crime created by the 1998 Act was not tailored to prohibit only weapons of mass destruction, even though that was the express purpose of the Convention. That realization, though, does not address other important questions about treaties. (Select all that apply) at 1882 (alteration in original) (quoting U.S. Const. So to test the limits on the Presidents power to make self-executing treaties, make one further assumption: that these hypothetical self-executing treaties cover some areas reserved for the states under our system of dual sovereignty. . 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. We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us. 98. . Missouri v. Holland, 252 U.S. 416, 432 (1920). See Lawson & Seidman, supra note 34, at 15. !PLEASE HELP!!! The Federalist No. There is nothing in [Article VI, the Supremacy Clause,] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. The rationale for this exception would be that ceding state territory as part of a peace treaty implements the presidential decision to sacrifice part of the country during wartime in order to save the rest.136 But Lawson and Seidman would cabin this authority to cede state territory to peace settlement[s] made during wartime; the Treaty Clause power would not permit this otherwise, so the President could not cede state territory via treaty as part of ordinary commercial relations.137 Perhaps a formal congressional declaration of war, or its equivalent, generally would be required for the President to have power to cede state territory.138 This structural check would ensure that the significant power to displace state sovereignty was used only with the acquiescence of both houses of Congress when the Presidents authority is at its maximum, per Justice Jacksons famous Steel Seizure concurrence.139. 75 (Alexander Hamilton), supra note 34, at 450. If the federal Treaty Clause power could violate state sovereignty, it would disrupt our constitutional structure and encroach on state sovereignty just like in New York, Printz, and NFIB v. Sebelius. Executive Powers !PLEASE HELP! You can specify conditions of storing and accessing cookies in your browser. The 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. '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. Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. It can exercise authority over no subjects, except those which have been delegated to it. In the United States, the Executive Branch (President) will negotiate a treaty, and it must be consented to by the Senate with a 2/3 affirmative vote. . Nor does the Senates concurrence give any indication on how the House of Representatives would vote on proposed legislation. To hold otherwise would be to undermine the constitutional structure created at the nations founding. What does the judicial branch do with laws? 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. See id. . Congresss implementing statute went far beyond the purpose of the Convention by covering much more than weapons of mass destruction. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.97, In the Bond litigation, the Obama Administration appears to agree that treaties cannot violate the Constitutions express prohibitions (such as those in the Bill of Rights).98, In contrast, the Administration appears to argue that the treaty power contains no subject-matter-based limitations.99 This is the predominant view in the legal academy: that there are essentially no other subject-matter limits on the Presidents power to make treaties.100 Under this majority view, which stems from Missouri v. Holland, a treaty can exercise power otherwise reserved to the states. This EssayEssay has argued that the Necessary and Proper Clause alone does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal governments powers. 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 75 (Alexander Hamilton), supra note 34, at 451. art. Even if the Senate ratifies a treaty, it will not be valid At the same time, our courts must scrutinize the federal governments powers to make and implement treaties. Some have plausibly argued that even if the President could enter into a treaty that covered subject matter outside of Congresss enumerated powers, Congresss powers still would not be increased.142. So they created three branches of government--the legislative (Congress), executive (President), and judicial (Supreme Court). Adopted Dec. 19, 1966, 999 U.N.T.S. !PLEASE HELP!!! Nor can treaties violate independent constitutional bars. 36. See Holland, 252 U.S. at 435 (The subject-matter is only transitorily within the State and has no permanent habitat therein.); id. [the Presidents] Power, by and with the Advice and Consent of the Senate, to make Treaties.149 He then reasoned that a Law[] . 65. The Constitution gives to the 1350 (2012) (The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.). In other words, Congress can pass laws that give the President the resources to exercise his executive power to negotiate and make treaties, but this authority does not necessarily give Congress the power to implement a treaty already made. 181. 67016771 (2012). granted, 133 S. Ct. 978 (2013). 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. But if Missouri v. Holland cannot be construed in that way, then it should be overruled in light of recent precedents from the Rehnquist Court and Roberts Court that police the boundaries of our constitutional structure. !PLEASE HELP! 529 U.S. 598 (2000); see Rosenkranz, supra note 13, at 187172 & nn.19, 22 (collecting sources). 16. .); Printz v. United States, 521 U.S. 898, 924 (1997) (finding that exercises of federal power that violate[] the principle of state sovereignty cannot be proper for carrying into Execution the federal governments enumerated powers). 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. The President faces this scenario any time the President enters into a non-self-executing treaty promising domestic legislation. at 432, on general grounds, id. Self-executing treaties will therefore raise questions about the Presidents Treaty Clause power but not Congresss power to implement these treaties. In other words, the Tenth Amendment may prohibit the President from entering into treaties regulating wholly domestic conduct, but migratory birds by their nature are not necessarily a matter of pure internal concern. One need not dream up fanciful hypotheticals to test the outer bounds of the treaty power. [A]llocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States . . The Framers explicitly enumerated the powers of the federal government, and all unenumerated powers were reserved to the States respectively, or to the people.117 If the states retain some sphere of sovereign authority over which the federal government has no power, then all attempts by the federal government to infringe on this sovereign state authority should be unconstitutional regardless of whether the federal government tries to do so through the Presidents Treaty Clause power or Congresss enumerated powers. 83. See Chemical Weapons Convention, supra note 53, art. Bond v. United States, 131 S. Ct. 2355, 2360 (2011). Impeach and try federal officers. Geofroy v. Riggs, 133 U.S. 258, 267 (1890). The U.S. Department of State keeps track of treaties for the federal government. Treaty Power Law and Legal Definition. The Chemical Weapons Convention is a non-self-executing treaty, just as the Migratory Bird Treaty was in Missouri v. Holland. The President is the Commander in Chief, can grant Pardons, appoints and commissions Officers of the United States with the advice and consent of the Senate, makes recess appointments, must take Care that the Laws be faithfully executed, and can make Treaties with the approval of two-thirds of the Senate.92 But nowhere does the Constitution give the President a general power to do whatever he believes is necessary for the public interest. 249 (1989) (statement of J. Robert H. Bork) (describing the Ninth Amendment as an ink blot). .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. Under this view, the President could enter into a non-self-executing treaty to cede state territory, and then Congress would have the power to implement that treaty in light of war concerns. 64 (John Jay), supra note 34, at 389. The Federalist No. 11. This simple, revolutionary idea shaped our nation. Whiskey Rebellion at 434 (The whole foundation of the States rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away.). 121. Federal Power vs. States Rights in Foreign Affairs, 70 U. Colo. L. Rev. Id. The Senate does not ratify treaties. 133 S. Ct. 978 (2013) (mem.) 131. Those which are to remain in the State governments are numerous and indefinite.84 States, moreover, retain a residuary and inviolable sovereignty.85 If there were any doubt about that proposition at the Founding, the Tenth Amendment in the Bill of Rights clarified: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.86 Thus, [a]s every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government.87, The Supreme Court in the first Bond case, dealing with Bonds standing, expounded on these principles. Constitutional structure our Framers gave us vs. States Rights in foreign Affairs, 70 U. Colo. Rev! Ct. 2355, 2360 ( 2011 ) the how does approving treaties balance power in the government and has no permanent habitat therein 1920 ) foreign! 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