The Supreme Court recently agreed to hear an important case concerning the government’s foreign affairs powers, Bond v. United States. That case, which involves a criminal prosecution under the Chemical Weapons Convention Implementation Act, raises fundamental issues about the relationship between the government’s authority to enter into treaties and constitutional principles of federalism. I wrote about that topic some years ago in an article that was cited in the Third Circuit’s decision in Bond, and I also address it in my forthcoming book, International Law in the U.S. Legal System. As a result, I have followed with great interest an ongoing debate about this issue, on The Volokh Conspiracy, between Rick Pildes and Nick Rosenkranz, with interventions by Ilya Somin and Eugene Kontorovich.
Here are a few thoughts about that debate, with a particular focus on what Rick and Nick have had to say.
1. In arguing for a treaty power unconstrained by federalism, Rick emphasizes that the Founders wanted the United States to be able to comply with its treaty commitments. That is certainly true, but I don’t see how it advances his argument. After all, a desire that the United States comply with its obligations is not the same as a desire for an unlimited ability to create obligations. Rick’s point might be that in international affairs there will at times be situations in which the United States needs to be able to trade away important constitutional values. But if that is his point, then he has no basis for insisting, as he does, that the treaty power is subject to individual rights limitations. After all, there might be national affairs interests that could call for a restriction of rights. One might respond, of course, that part of the reason for having constitutional protections is to disallow the government from making such tradeoffs, but then the same point could be made about the constitutional value of federalism. To be sure, some people do not think federalism is a particularly important constitutional value and have doubts about the Supreme Court’s modern federalism jurisprudence. But Rick’s argument, as I understand it, accepts as a given the Supreme Court’s commitment to federalism as an important constitutional value. It is also worth noting that the current Court views federalism and individual rights as connected rather than as separate values. In fact, in the first round of the Bond case when the Court was addressing the defendant’s standing to raise the federalism argument, the Court specifically observed that “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”
2. I agree with Nick that any theory of the treaty power must be consistent with the limited and enumerated powers structure of the Constitution, a structure confirmed by the Tenth Amendment. Nevertheless, I do not find Nick’s particular theory of the treaty power to be convincing. Under his approach, federalism is no limit on the treaty power as long as the President and Senate make the treaty self-executing. But if the President and Senate decide to make the treaty non-self-executing and thereby leave domestic implementation to Congress, Nick argues (based on a particular reading of the Necessary and Proper Clause) that the implementation is limited by the scope of Congress’s enumerated powers. As Rick points out, it is not clear why the Founders would have wanted such a scheme, or even how such a scheme promotes the federalism values that Nick supports. If anything, one might think that the national government should have more rather than less domestic regulatory authority if the President, Senate, and House are all involved rather than just the President and Senate. Another problem with Nick’s theory is that it purports to be a claim about the Constitution’s original meaning and yet relies on a concept (treaty non-self-execution) that did not become clearly established until after the Founding (most notably in the Supreme Court’s 1829 decision, Foster v. Neilson).
3. It is sometimes suggested that the Supreme Court’s 1920 decision in Missouri v. Holland holds that federalism is irrelevant to the treaty power, but this is false. Whether one admires Justice Holmes’ cryptic style in that opinion, or (like me) finds it frustrating, what he says is that although there are constitutional qualifications on the treaty-making power, “they must be ascertained in a different way,” and that in evaluating the effect of the Tenth Amendment “[w]e must consider what this country has become,” not that it is irrelevant. Moreover, Holmes went out of his way to emphasize that the subject of the treaty there—the protection of migratory birds that traveled across international boundaries—required international cooperation in order to be addressed successfully. As he explained, the protection of migratory birds could be accomplished “only by national action in concert with that of another power.” There is a careless line in Holland that could be read to suggest that any treaty that has gone through the senatorial advice and consent process is immune from constitutional limitation. Holmes observed that the Supremacy Clause refers to statutes made pursuant to the Constitution whereas it refers to treaties made under the authority of the United States and noted that “[i]t is open to question whether the authority of the United States means more than the formal acts prescribed to make the [treaty].” If that’s all that were required in order for a treaty to be valid, however, it would mean that even individual rights limitations would not apply to the treaty power. But no one thinks that is correct. As is now widely agreed, the reason why the Constitution refers to treaties made under the authority of the United States rather than made pursuant to the Constitution is simply to ensure that treaties concluded before the Constitution, most notably the peace treaty with Great Britain, were included in the supreme law of the land, not to immunize treaties from constitutional limitation.
4. The blogging on Bond hasn’t yet focused very much on the actual case before the Supreme Court. In that case, the government is prosecuting one U.S. citizen for attempting to use chemicals to poison another U.S. citizen, as part of a local domestic dispute. Although I resisted the idea when writing about this topic years ago, I am now more attracted to the proposition that the treaty power should be limited to matters that are of truly mutual concern to the parties, including most notably matters that involve the need for international cooperation. Such a requirement has some historic support and would not require overruling Holland, which, as noted, emphasized that joint action was needed to protect migratory birds—that is, to address a collective action problem. In Bond, no one can dispute that preventing the development of chemical weapons, as that term is commonly understood, is of mutual concern to nations and can benefit from international cooperation. As the website for the oversight body for the Chemical Weapons Convention makes clear, the treaty is designed to “eliminate an entire category of weapons of mass destruction.” But, as all three judges on the Third Circuit panel in Bond observed, it is hard to see how the particular prosecution in this case has anything to do with the goal of the treaty, which may be why the Supreme Court has now twice granted review.
5. Rick has argued that any theory of the treaty power needs to explain why it was proper for the 1783 treaty of peace with Great Britain to override state law relating to the payment of British creditors. Let’s put aside the fact that the peace treaty was concluded prior to the Constitution and thus does not squarely implicate the relationship between the treaty power and federalism. After all, it has not been uncommon for treaties since that time to address the rights of aliens—for example, to own property or run a business within the United States—even though such rights are also addressed by state and local law. Part of the answer, it seems to me, is that Rick is simply assuming that Congress would be unable to regulate to protect aliens in the absence of a treaty (through, for example, the foreign commerce power). Certainly today we assume that Congress has broad authority to regulate the treatment of aliens, and disputes primarily involve the extent to which states can regulate when Congress has not expressly precluded them from doing so. In any event, alien protection treaties fit comfortably within the “international cooperation” conception of the treaty power that I am suggesting here, given the obvious reciprocity interests. What will fit less comfortably are modern human rights treaties, which purport to regulate how the United States (including its state and local governments) interacts with its own citizens. But it is worth keeping in mind that most provisions in those treaties can be addressed through Congress’s enumerated powers, including, where relevant, its powers under the Reconstruction Amendments. Indeed, for the most important human rights treaty that the United States has joined—the International Covenant on Civil and Political Rights—the United States has enacted no implementing legislation whatsoever, on the assumption (quite plausible, in my view) that existing law predating the treaty is sufficient to meet U.S. obligations.
6. A final observation: If your view of our constitutional structure is that Congress and the President acting together lack the authority to abolish the death penalty at the state level, but that the Senate and President can do so as long as they find another country willing to agree to it by treaty, I want to suggest that there is something wrong with your view. Rick seems to acknowledge that this sort of scenario is problematic, but his only response is to suggest that perhaps there should be some sort of “pretext” limitation on the treaty power, whereby treaties would not be allowed if entered into only for the purpose of enhancing the national government’s authority. But such a pretext limitation would in practice do no work, since it will be impossible for courts to evaluate the government’s motives, and the government will always be able to claim some non-pretext reason for the treaty. In the death penalty example, all that the government would need to do to avoid a pretext limitation would be to find another country that is agreeing to abolish the death penalty at the same time, because then the government could claim that it has an interest in making the reciprocal promise. Because Rick accepts as a given the Supreme Court’s commitment to enforcing federalism values, he should concede that his proposed pretext limitation is insufficient.