Revisiting the Treaty Power?

Ilya Somin notes that Bond v. United States could possibly be going back to the Supreme Court, with a question that raises the Treaty Power of the United States. The treaty power is currently interpreted by the Courts to be an independent power that can be separately exercised from Congresses other enumerated powers, so the normal federalism limits don’t apply when it comes to a treaty. No treaty can stomp on the Bill of Rights, but beyond that the treaty power is fairly unlimited. I agree with Prof. Somin that this presents a problem:

I think the power to make treaties is best understood as a power allowing the federal government to make commitments regarding the use of its other enumerated powers, not a power that allows the federal government to legislate on whatever subjects it wants, so long as the issue is covered by a treaty. Among other things, the latter would enable the federal government to circumvent limits on the scope of its power by paying off a foreign power (e.g. – a weak client state dependent on US aid) to sign a treaty covering the subject.

I’d love to see the Supreme Court revisit this topic, and hold the treaty power can only be exercised within the scope of Congress’ other enumerated powers, but this would call a number of treaties into question, including those that affect hunting. I tend to think the Court will be cautious about a ruling that would affect current treaties.

The landmark ruling that lead to Congress’ treaty power being interpreted this way was Missouri v. Holland, which upheld the Migratory Bird Treaty Act of 1918. Since then the Courts have tended to limit this power. Of course, Missouri v. Holland was decided in 1920, when the scope of the federal governments enumerated powers were considerably more constricted, so today it would probably be possible to argue that the 1918 treaty is a legitimate exercise of Congress’ enumerated powers, and is therefore still constitutional, even if the Court decides to further limit the treaty power.

2 Responses to “Revisiting the Treaty Power?”

  1. Trevor Shepherd says:

    I don’t like it, but the wording of the united States Constitution is pretty rock solid that treaties are the supreme law of the land, superior even to the Constitution, and treaties are legally binding on the States. Like I said, I don’t like it. But the wording is really crystal clear on this point.

    • Jake says:

      Not quite.

      Article VI.
      This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

      The Constitution, federal law, and treaties, are all grouped together as “the supreme Law of the Land”. The context shows the meaning is that they are all binding on the states, even if they would violate a state’s constitution or laws. But Congress cannot approve a treaty that would violate the U.S. Constitution, just as they cannot pass a law that would violate it.