16. . The President may very well have constitutional authority to enter into promises that he knows the United States either will not, or cannot, keep. See The Federalist No. But cf. !PLEASE HELP! 11. The first two limits are widely recognized, but most scholars believe the third was rejected in Justice Holmess 1920 decision in Missouri v. Holland.93 This Essay, however, argues in favor of all three limitations, which would preserve constitutional limits on federal power and protect state sovereignty. 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. Regardless of whether this is viewed as a Tenth Amendment problem or an enumerated powers dispute, the bottom line is the federal government cannot aggrandize power otherwise reserved to the states. The Federalist No. Legislative Check How does it balance power in the government? But the ultimate concern of a Tenth Amendment limit is preserving state sovereignty as a structural principle, as opposed to having to answer whether the Treaty Clause grants substantive powers. 111. . U.S. . 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. Sovereignty should be the touchstone of any debate over the limits on the treaty power. .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. Even if the Senate ratifies a treaty, it will not be valid unless the president then approves the Senate version of the treaty. 88. 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. Even if one accepts Justice Holmess interpretation of the Necessary and Proper Clause, there could still be limits on Congresss power to implement treaties. Under Morrison, therefore, the Commerce Clause did not give Congress authority to criminalize Bonds acts through the Chemical Weapons Convention Implementation Act of 1998. !PLEASE HELP! 85. (alteration in original) (quoting U.S. Const. 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. Ann. Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 159. 1, 57. 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. 152. 229229F (2012); 22 U.S.C. !PLEASE HELP!!!! United States v. Lopez, 514 U.S. 549, 552 (1995). 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. The Senate has the power to approve it with two-third vote. Years after Missouri v. Holland, one professor tried to use the Necessary and Proper Clauses drafting history to show that Congress had the power to implement treaties. See Rosenkranz, supra note 13, at 1874. But regardless of whether Congress had that authority, the President had the Treaty Clause power to make the treaty, even if he knew that the promise of U.S. participation could never be kept. 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. Instead, he and the Senate would have enacted binding domestic law through treaties. 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. 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. . Which house has the power to consider treaties with foreign countries? These and other treaties could be used to infringe on state sovereignty. 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. 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. 142. Indeed, James Madison remarked that [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . 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. But the governments power emanates from the sovereign will of the people. [A]llocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States . The !PLEASE HELP!!! 91. at 432, on general grounds, id. Id. 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. The Constitution gives to the Senate the sole power to approve, by a two-thirds vote, treaties negotiated by the executive branch. 29. As Jay remarked: The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.39, Hamilton, too, did not trust the President alone to wield the hefty treaty power, as he feared that one could betray the interests of the state to the acquisition of wealth.40, At the same time, the Framers realized it was impractical to expect a collective body, like Congress or the Senate, to negotiate the minutiae of treaties. . 181. 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. Perhaps another one of Congresss enumerated powers such as the Commerce Clause might happen to give Congress that authority. Instead, the Senate Geofroy v. Riggs, 133 U.S. 258, 267 (1890). The consent of the House of Representatives is also necessary for the ratification of trade agreements and the confirmation of the Vice President. Thomas Jefferson, Manual of Parliamentary Practice 110 (Clark & Maynard 1870) (1801) (emphasis added). VII(1) (Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.). 121. 12, 153 (Mar. Article II, Section 2 provides that the President has the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.33 By housing this power in Article II, the Framers designated the treaty power as one of the Presidents executive powers as opposed to one of Congresss legislative powers. 149. 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. 84. 75 (Alexander Hamilton), supra note 34, at 450. The Supreme Court is on the cusp of deciding another important case about the treaty power: Bond v. United States.27 Bond will test whether an international treaty gave Congress the authority to create a federal law criminalizing conduct from a domestic dispute involving wholly local conduct. 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. PLEASE HELP!!! Besides this textual argument, there is an even more potent, structural argument for limits on Congresss power to implement treaties. The writers of the U.S. Constitution didn't want to put too much power into the hands of one person. See Holland, 252 U.S. at 435 (The subject-matter is only transitorily within the State and has no permanent habitat therein.); id. See Missouri v. Holland, 252 U.S. 416, 432, 434 (1920) (noting that Missouris challenge was a general one, id. .); 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). See Natl Fedn of Indep. In 1836, the Court explained: The government of the United States . !PLEASE HELP!!! Either way, we must determine whether any of the . City of Boerne v. Flores, 521 U.S. 507 (1997). That is, assume that the treaties themselves had domestic effect that prohibited individuals in the United States from hunting migratory birds or using chemicals (in the same manner as Congresss actual subsequent implementing legislation). Even if the Senate ratifies a treaty, it will not be valid In observing that a President could abuse the treaty power for his personal gain if the President alone possessed this power, Hamilton stated: The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.48. 100. 44. 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. The ability to impose domestic obligations on states and individuals triggers Tenth Amendment concerns about the sovereign states and their reserved powers. must establish that no set of circumstances exists under which the Act would be valid.). Ins. . 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. United States v. Morrison, 529 U.S. 598 (2000). (granting certiorari). United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (quoting 10 Annals of Cong. _Approves_ presidential appointments for _judges/justices_. II, 2) (internal quotation marks omitted). 146. Dual sovereignty therefore properly constrains the federal governments treaty power. 143. !PLEASE HELP!!! Stated differently: just because the President enters into an agreement with Senate approval, it does not follow that the treaty will be implemented, so the inability to implement certain treaties is wholly consistent with the nature of non-self-executing treaties. Because the Treaty imposed no domestic obligations of its own force, the mere creation of the Treaty could not necessarily have displaced state sovereignty protected by the Tenth Amendment. 31. 64 (John Jay), supra note 34, at 390. To hold otherwise would be to undermine the constitutional structure created at the nations founding. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment). Can a president make a treaty with another nation? 40. 1. 80. Federalism limits government by creating two sovereign powersthe national government and state governmentsthereby restraining the influence of both. !PLEASE HELP!!! At the same time, our courts must scrutinize the federal governments powers to make and implement treaties. treaties and presidential appointments. Treaty Power Law and Legal Definition. 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. . 81. Opened for Signature Dec. 10, 1982, 1833 U.N.T.S. 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. See, e.g., Natl Fedn of Indep. See U.S. Const. The Presidents power to make treaties is limited by the procedures required by the Treaty Clause. 75 (Alexander Hamilton), supra note 34, at 449. 20. !PLEASE HELP! United States v. Bond, 581 F.3d 128, 137 (3d Cir. The Federalist No. !PLEASE 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? 1867, 187173 & nn.1925 (2005). Part II briefly lays out the facts in Bond v. United States, which raises many difficult issues that will be discussed in the remainder of the Essay. 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.). !PLEASE HELP!!! Id. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 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. (June 22, 2012), http://articles.washingtonpost.com/2012-06-22/opinions/35461763_1_royalty-payments-reagan-adviser-sea-treaty. See id. Approves treaties Approves presidential appointments Impeaches and tries federal officers Overrides a president's veto 1; U.S. Const. 59. First, Missouri v. Holland may have turned on the international character of the regulated subject matter that is, migratory birds. United States v. Bond, 681 F.3d 149, 162 n.14 (3d Cir. 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. !PLEASE HELP! Missouri v. Holland, 252 U.S. 416, 432 (1920). on the Judiciary, 100th Cong. The One need not dream up fanciful hypotheticals to test the outer bounds of the treaty power. As discussed above, non-self-executing treaties create no domestic obligations on the states or individuals,177 so they cannot directly displace state sovereignty protected by the Tenth Amendment. Apr. When foreign policy issues take center stage in American politics, much of the focus tends to be on the executive branch. The Chemical Weapons Convention is a non-self-executing treaty, just as the Migratory Bird Treaty was in Missouri v. Holland. Brief for the United States at 46, Bond v. United States, No. 180. 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. !PLEASE HELP! 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. The Constitution gives to the Senate the sole power to approve, by a two-thirds vote, treaties negotiated by the executive branch. The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification. As the American people exercised their sovereign will in constituting our government, the Framers did not create a single governmental structure that possessed all power. 124. 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. (Select all that apply) !PLEASE HELP!!! 169. for carrying into Execution . . Some have said that we should not fear such broad power to implement treaties, because political actors in the Senate the body most reflective of state sovereignty sufficiently protect state interests.163 In many ways, this line of thinking is consistent with the view that courts should not enforce limits on Congresss enumerated powers, but should rather be content that the political process can safeguard federalism and the separation of powers.164. 2332c(b)(2) (1994 & Supp. 1, 44 n.158. Both involve the application of a federal statute to a wholly local assault covered by state criminal law. This simple, revolutionary idea shaped our nation. 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. Chemical Weapons Convention is a non-self-executing treaty, just as the Commerce might! Debate over the limits on the treaty Clause to the Senate has the power approve! 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