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01/28/2013

Curt Bradley on Bond v. United States (and my response)
Michael Ramsey

At Lawfare, Curtis Bradley (Duke law): Bond v. United States and the Treaty Power Debate (with comments on the on-going discussion at Volokh Conspiracy).

There are lots of great points in the post, but I was especially struck by this one:

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.

I think that is my view, so let me say briefly why I think there's nothing wrong with it.  (A longer explanation is here).

First, that's exactly what the Constitution's text indicates.  Per Article I, Section 1, Congress' lawmaking power is textually limited to the "legislative powers herein granted" (mainly those listed in Article I, Section 8).  In contrast, there is no textual subject-matter limitation on the President's power "to ... make treaties, provided two thirds of the Senators present concur."  (I accept that to be a true "treaty" the agreement must be on a matter of international concern, and not a mere pretext; but the death penalty today is -- rightly or wrongly -- a matter of international concern).  People who want to find a subject matter limitation on the treaty power have to invoke a structural imperative, not constitutional text, because there is no text.

Second, there also is no structural imperative.  Federalism does not require a subject-matter limitation on the treatymaking power.  It's perfectly plausible to design a structure in which two-thirds of the Senate can do something a majority of both Houses cannot.  Even today, there is a world of difference between getting a bare majority to agree to something and getting two-thirds to agree.  (Just ask the proponents of the Convention on the Rights of Persons with Disabilities).  Under the original design, in matters of federalism the difference was much greater.  By Article I, Section 3, of the original Constitution, Senators were appointed by the States.  Thus, in effect, a treaty required approval of two-thirds of the representatives of the States (as it did, roughly, under the Articles of Confederation).  Under that structure, threats to federalism from the treatymaking power were much less than threats to federalism from the lawmaking power.

As a result, the need to protect federalism does not require us to read into the Constitution a subject-matter limitation on the treatymaking power that does not exist in the text.  The original Constitution's limit on the treatymaking power was not based on subject-matter; instead, it was based on the role and composition of the Senate.  (And, as an aside, that may well be a better limit -- because the effectiveness of a subject-matter limitation depends on the willingness of the Supreme Court to enforce it).

Of course, the structural protection on which I'm relying was drastically altered by the Seventeenth Amendment, which made Senators directly elected rather than appointed by the States.  But that at most raises a policy-based objection to the Seventeenth Amendment; it doesn't raise questions about the original meaning of the treatymaking clause, which the Seventeenth Amendment didn't change.  And even after the Seventeenth Amendment, it still tends to be harder to get two-thirds approval of one House than to get a bare majority in both. 

This, then, is my answer to the conundrum Professor Bradley poses.  It makes sense to think to think that the President plus two-thirds of the Senate can be more intrusive on the states (for example, regarding the death penalty) than the President plus a majority of both houses.  It makes even more sense to think that the framers thought so, for their Senate was in effect selected by the States.  The contrary view arises from thinking too much in terms of judicial protections of federalism and not enough in terms of structural and institutional protections.