!PLEASE HELP!!! 121. 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. How does the legislative branch approving treaties balance the government? Either way, we must determine whether any of the . Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment). 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. See Lawson & Seidman, supra note 34, at 15. Two lower federal courts declared the statute invalid, finding that it was not within any enumerated power of Congress, and the Department of Justice feared that the statute might meet the same fate in the Supreme Court. Part III therefore argues that the President cannot make any treaties displacing state sovereignty and that the Necessary and Proper Clause power does not give Congress the authority to implement a treaty in a way that displaces state sovereignty. It may not be prudent for a President to breach treaties or to enter into treaties that he knows will be ignored. Stat. PLEASE HELP! Bond v. United States, 133 S. Ct. 978 (2013). See Curtiss-Wright, 299 U.S. at 315 (noting the fundamental differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs). Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. Ill. L. Rev. The treaty in Missouri v. Holland was a non-self-executing treaty,111 so it was an agreement between nations that imposed no binding domestic obligations on states or individuals.112 A non-self-executing treaty can be a promise to enact certain legislation; [s]uch a promise constitutes a binding international legal commitment, but it does not, in itself, constitute domestic law.113 So in Missouri v. Holland, the President may have promised other countries that the United States would enact migratory bird legislation, but the Presidents promise itself was only an agreement made between nations.114. 8. In any event, even if there are certain hypotheticals involving war that may increase the treaty power, the sovereignty of the people and the sovereignty they duly delegated to the states at the Founding should not be discarded lightly. ); id. [A]llocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States . 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. 229229F (2012); 22 U.S.C. More fundamentally, a non-self-executing treaty might never violate the Tenth Amendment or infringe on state sovereignty. The Federalist No. This Essay will proceed in five parts. 39 (James Madison), supra note 34, at 242. Id. . 159. Sovereignty should be the touchstone of any debate over the limits on the treaty power. 85. The central thesis of this Essay is simple: the President, even with Senate acquiescence, has no constitutional authority to make a treaty with a foreign nation that gives away any portion of the sovereignty reserved to the states. 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. Executive Powers at 1878 n.52 (collecting authorities). .); 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). [the Presidents] Power, by and with the Advice and Consent of the Senate, to make Treaties.149 He then reasoned that a Law[] . Article II delineates the Presidents powers at a higher level of generality, but those powers are nevertheless still enumerated. . 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? 2012), cert. 529 U.S. 598 (2000); see Rosenkranz, supra note 13, at 187172 & nn.19, 22 (collecting sources). -First, it passes an authorization bill that establishes a program and says how much can be spent on the program. Other treaties constitute international law commitments, but they do not by themselves function as binding federal law9 these are called non-self-executing treaties. !PLEASE HELP!!! We accept the proposition that a fully informed eighteenth-century audience would have been startled to discover that the federal government had no power to cede territory, even as part of a peace settlement. (footnote omitted)). 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. If Justice Holmes was correct, then the President and Senate could agree with a foreign nation to undo the checks and balances created by the people who founded our nation. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). Professors Lawson and Seidman may have put it best: If the Treaty Clause does give the President and the Senate power to alter state capitals, . Can prove laws to be against the_Constitution_. 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. 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. The museum has justfinished a massive renovation of the museum and its exhibitions, the first major renovation in more than 20 years and the largest since the museum opened its doors in 1957. 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. The Supreme Court has also repeatedly recognized that our constitutional structure prevents circumvention of enumerated limits on federal power, even if the Constitutions text does not explicitly prohibit a certain exercise of federal power. See Missouri v. Holland, 252 U.S. 416, 432, 434 (1920) (noting that Missouris challenge was a general one, id. 10609; see also Medelln v. Texas, 552 U.S. 491, 50406 (2008). 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. The treaty was made [and] the statute enacted . 2009), revd, 131 S. Ct. 2355. 111. 125. Individual liberty is also preserved by divided government: By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.89, So the people, acting as sovereign, only delegated to the federal government certain enumerated powers. art. If the ultimate power resides with the people, then the people control government, rather than the government controlling the people. See, e.g., Lawson & Seidman, supra note 125, at 6267. 613 (1800)); see Am. This simple, revolutionary idea shaped our nation. But even putting aside this Tenth Amendment textual argument, there are significant structural arguments in favor of limiting the Presidents Treaty Clause power. !PLEASE HELP!!! But even with a proper understanding of the limits on these treaty powers, the Court still could have rejected a facial challenge to the Migratory Bird Treaty or its implementing Act. The treaty power is a carefully devised mechanism for the federal government to enter into agreements with foreign nations. Its purpose is to achiev[e] effective progress towards general and complete disarmament . 29. Rosenkranz, supra note 13, at 1878; see id. !PLEASE HELP!!! And Congress may have had Commerce Clause authority to implement the Treaty legislatively, at least insofar as the Treaty covered migratory birds moving interstate or between countries. Many view it as granting the federal government nearcarte blanche authority to make and implement treaties. The Court might invoke the canon of constitutional avoidance to hold that Bonds conduct is not covered by the Act as a matter of statutory interpretation, an argument Bond has pressed. Fry v. United States, 421 U.S. 542, 547 n.7 (1975). The President therefore cannot unilaterally enter into a treaty. 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. 147. New York v. United States held that the federal government cannot commandeer state governments into passing or enforcing a federal regulatory program.126 New York rightly explained: [J]ust as a cup may be half empty or half full, it makes no difference whether one views the question at issue in these cases as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment. See, e.g., Martin S. Flaherty, Are We to Be a Nation? One would still have to determine whether there were limits on (1) the Presidents power to make self-executing treaties or (2) Congresss authority to legislatively implement treaties. . 140. And even if a treaty fell within an enumerated power, the federal government would still act unconstitutionally if an independent provision of the Constitution, such as the Bill of Rights, affirmatively denied the authority. That proposition runs counter to our entire constitutional structure. But the Necessary and Proper Clause combined with a treaty would not, under Rosenkranzs textual argument. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). For example, if the President, with Senate approval, entered into a self-executing treaty that banned all political speech, that treaty would be invalid as contrary to the First Amendments Free Speech Clause. 153. Id. Treaties are probably the most prevalent mechanism by which domestic law adopts international law. In any event, there are good arguments to impose additional limits on Congresss power to implement treaties, and thus to reject Justice Holmess statement. Luckily, the Roberts Court has signaled that it will recognize the limits on the federal governments treaty power. !PLEASE HELP!!! . Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal governments authority. The Supreme Court in Medelln ruled that the President lacks constitutional authority to transform[] an international obligation arising from a non-self-executing treaty into domestic law.140 That responsibility, the Court held, falls to Congress.141 So we must consider whether there are any limits on Congresss ability to implement a treaty legislatively. . Under Morrison, therefore, the Commerce Clause did not give Congress authority to criminalize Bonds acts through the Chemical Weapons Convention Implementation Act of 1998. . According to that professor, The necessary and proper clause originally contained expressly the power to enforce treaties but it was stricken as superfluous. Id. at 432, on general grounds, id. Some treaties, like the Arms Trade Treaty,10 the United Nations Convention on the Law of the Sea,11 and the Convention on the Rights of Persons with Disabilities,12 purport to let international actors set policy in areas already regulated by the federal government. Boos v. Barry, 485 U.S. 312, 324 (1988) (quoting Reid v. Covert, 354 U.S. 1, 16 (1957)). XYZ Affair The Constitution gives the Senate the power to approve, by a two-thirds vote, treaties negotiated by the executive branch. Missouri v. Holland, 252 U.S. 416, 43334 (1920). 18 U.S.C. 171, 6 I.L.M. at 2602 (opinion of Roberts, C.J.). Thus, our fledgling nation had to project strength to the rest of the world while remaining disentangled from conflicts among other countries. Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. Congress has the power to: Make laws. (internal quotation marks omitted). 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. The U.S. Department of State keeps track of treaties for the federal government. There are, however, two exceptions to this rule: the House must also approve appointments to the Vice Presidency and any treaty that involves foreign trade. Holland, 252 U.S. at 43334 (The only question is whether [the Migratory Bird Treaty Act] is forbidden by some invisible radiation from the general terms of the Tenth Amendment.). We must return to sovereignty to assess whether constitutional limits exist to restrain the federal governments power to create and implement treaties, and what those limits might be. This site is using cookies under cookie policy . 152. FILL IN THE BLANKS USING THE INFORMATION ON THE FIRST PAGE, 500 W US Hwy 24 (Select all that apply) Dual sovereignty therefore properly constrains the federal governments treaty power. Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. 173. Pa. v. Casey, 505 U.S. 833, 855 (1992). 124. VII. I, 8, art. 134. 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. See, e.g., Rosenkranz, supra note 13 (arguing for limits on Congresss powers to implement treaties). As Madison famously noted: If men were angels, no government would be necessary.47 This same concern was present in creating the treaty power. I, 8, art. See e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (A facial challenge to a legislative Act . And virtually every important thinker who influenced the founding generation thought of treaty making as an executive function.34, Yet just as the President retains a veto power over Congresss legislative power,35 the Senate retains a veto over the Presidents treaty power by preventing adoption of a treaty unless two thirds of the Senate approves. See id. II, 1, cl. Holden v. Joy, 84 U.S. (17 Wall.) John Lockes Second Treatise on Civil Government argued that sovereignty initially lies with the people.29 When Locke wrote this in the seventeenth century, it was a novel idea that shattered the prevailing view that sovereignty lay with the English monarch or parliament. 3 (John Jay), supra note 34, at 36. Apr. on the Judiciary, 100th Cong. Cf. at 434); Rosenkranz, supra note 13, at 187879 (noting that Missouri barely touched the question of whether an expansive executive treaty power would give Congress constitutional authority to pass enacting legislation that fell outside its enumerated powers). Lawson & Seidman, supra note 125, at 63. 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. 2013). Medelln v. Texas, 552 U.S. 491, 504 (2008). 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. 181. 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. It can exercise authority over no subjects, except those which have been delegated to it. Instead, he and the Senate would have enacted binding domestic law through treaties. As Madison stated, [t]he powers delegated by the proposed Constitution to the federal government are few and defined. One need not dream up fanciful hypotheticals to test the outer bounds of the treaty power. . 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. The President may very well have constitutional authority to enter into promises that he knows the United States either will not, or cannot, keep. 65. Instead, the Senate granted, 133 S. Ct. 978 (2013). how to Appropriate Funds (much money will be spent for what purpose) One of the important powers of the senate is that it must approve. But if that were so if state sovereign powers were a null set then the Tenth Amendment would be superfluous, as would the whole of Article I, Section 8. for carrying into Execution . !PLEASE Similarly, the Framers saw they were not living in a world of utopian foreign nations, and these nations often did not have the best interests of the United States in mind. . !PLEASE HELP!!!! 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. 2, 1992). 67016771 (2012). 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. 177. . 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 . Legislation that has nothing to do with a treatys subject matter would be neither necessary nor proper for carrying into Execution that treaty.144 For instance, the Chemical Weapons Convention would not give Congress the authority to enact legislation that has nothing to do with chemical weapons. . Congress has specifically defined powers enumerated in Article I, Section 8. Congresss implementing statute went far beyond the purpose of the Convention by covering much more than weapons of mass destruction. Can a president make a treaty with another nation? . For arguments against ratification of the Convention on the Law of the Sea, see George F. Will, The LOST Sinkhole, Wash. Post. L. Rev. There are critical limits on the Presidents power to make treaties: (1) two-thirds of the Senate must approve of the treaty; (2) the treaty cannot violate an independent constitutional bar; and (3) the treaty cannot disrupt our constitutional structure by giving away sovereignty reserved to the states. Such legislation would lack constitutional authority just like the Gun-Free Schools Zone Act invalidated in United States v. Lopez145 or the parts of the Violence Against Women Act struck down in Morrison.146 The Supreme Court has not had to clarify how closely the implementing legislation must fit with the treaty. Thomas Jefferson, Manual of Parliamentary Practice 110 (Clark & Maynard 1870) (1801) (emphasis added). The President, consequently, may have the authority to promise a foreign nation that the United States will enact certain domestic legislation even if Congress has no power to enact this legislation, or the President believes that there is no chance that Congress would enact the legislation even if it had the power.116 In our system of limited government, the President does not have complete power; only Congress exercises the federal legislative power, and significant powers have been reserved for the states. . 27. 143. 174. 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. . III, 1. Perhaps another one of Congresss enumerated powers such as the Commerce Clause might happen to give Congress that authority. at 1882 (alteration in original) (quoting U.S. Const. Why and how is power divided and shared among national state and local governments? . . The HarryS. Truman Library and Museum is part of the Presidential Libraries system administered by the National Archives and Records Administration,a federal agency. at 1912. Id. 120. 75 (Alexander Hamilton), supra note 34, at 450. 12, 153 (Mar. Independence, MO 64050 47 (James Madison), supra note 34, at 298. 93. 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. Press 2003). granted, 133 S. Ct. 978 (2013). But cf. Three Branches of Government The Balance of Government (answers) The Balance of Government (answers) EXECUTIVE LEGISLATIVE Interprets _ laws _. The consent of the House of Representatives is also necessary for the ratification of trade agreements and the confirmation of the Vice President. . Medelln, 552 U.S. at 499 (alterations in original) (quoting Vienna Convention, supra note 19, art. 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. 30. In Morrison, the Court invalidated part of the Violence Against Women Act of 1994 on the basis that it would have usurped the states police power to implement criminal laws for wholly local conduct.180 The parallels between Morrison and Bond are striking. !PLEASE HELP! The Chemical Weapons Convention is a non-self-executing treaty, just as the Migratory Bird Treaty was in Missouri v. Holland. That, however, may be an overreading of Missouri v. Holland, as discussed further below in Part IV. . 150. art. 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. art. 135. The Court, however, has suggested that this may not be absurd. 163. The Constitution gives to the . There would be no reserved state powers if agreements with foreign nations could increase Congresss authority beyond its enumerated powers. 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. .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. They separated the legislative, executive, and judicial powers into three distinct branches of a federal government.31 And they limited the powers possessed by the federal government by explicitly enumerating its powers while reserving unenumerated powers, like the general police power, to the states.32, Of particular relevance to this Essay, the Framers similarly carved up the power to make treaties. Id. !PLEASE HELP!!! . See, e.g., Natl Fedn of Indep. But Medelln involved an unusual fact pattern, and many questions remain about the scope of the federal governments treaty power. . 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. 1, 57. . ([T]here are situations in which American law tells you to look at international or foreign law.). Transit Auth., 469 U.S. 528, 55054 (1985) (discussing the role of constitutional structure and congressional legislation in preserving state interests). !PLEASE HELP!!! See U.S. Const. 84. 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. 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 !PLEASE HELP!!! . . Missouri v. Holland, 252 U.S. 416, 432 (1920). Bond v. United States, 131 S. Ct. 2355, 2364 (2011). Sovereignty, the Treaty Power, and Foreign Affairs, III. At its core, the validity of Justice Holmess assertion in Missouri v. Holland, that Congress has plenary power to implement any treaty, turns on whether the federal government is one of limited, enumerated powers.