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01/17/2013

More on Congress' Power to Enforce Treaties
Michael Ramsey

At Volokh Conspiracy, Nick Rosenkranz and Rick Pildes continue their debate on Congress' power to enforce treaties:

The Framers Gave Congress a Robust List of Powers; They Did Not Provide That These Legislative Powers Can Be Increased By Treaty (Rosenkranz)

Does Congress Have the Power to Enforce Treaties? Part II (Pildes)

There Is No Textual Foundation For The Claim That Treaties Can Increase The Power of Congress (Rosenkranz)

As a textual matter, the debate rests principally on the following argument by Professor Rosenkranz (from the latter post):

The conventional view … is that [Congress’ power to enforce treaties] derives from a combination of the Necessary and Proper Clause and the Treaty Clause. … The Necessary and Proper Clause provides: “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The Treaty Power is certainly an “other Power[] vested by th[e] Constitution.” The Treaty Clause provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

So the Treaty Power is, in fact, a referent of the Necessary and Proper Clause, and thus the conjunction of these two clauses is essential to an analysis of whether a treaty can increase the legislative power of Congress. Here, then, is the way that these two Clauses fit together as a matter of grammar:

“The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the [President’s] Power … to make Treaties….”

The question is the scope of that power. What is a “Law[] for carrying into Execution the … Power … to make Treaties”?

For purposes of this inquiry, the key term is the infinitive verb “to make.” The power granted to Congress is emphatically not the power to carry into execution “the treaty power,” let alone the power to carry into execution “all treaties.” Rather, on the face of the text, Congress has power “To make all laws which shall be necessary and proper for carrying into Execution the … Power … to make treaties.”

This power would certainly extend to laws appropriating money for the negotiation of treaties. And it would likewise embrace any other laws necessary and proper to ensure the wise use of the power to enter treaties. These might include, for example, appropriations for research into the economic or geopolitical wisdom of a particular treaty, or even provisions for espionage in service of the negotiation of a treaty. But on the plain constitutional text, such laws must have as their object the “Power … to make treaties.” This is not the power to implement non-self-executing treaties already made.

Maybe so ... I've written on closely related topics but I've reserved judgment on this question.  (Missouri v. Holland and Historical Textualism argues the distinct point that the scope of the treatymaking power is not limited by Congress' enumerated powers).

Here's a question for Professor Rosenkranz: might Congress' power to enforce treaties arise, at least in part, from Congress' power to "define and punish ... Offenses against the Law of Nations"?  At least some eigthteenth-century writing regarded treaties as a subset of the law of nations.  For example, in The Law of Nations, prelim., sec. 24 (1758), Vattel states: "The several engagements into which nations may enter, produce a new kind of law of nations, called conventional, or of treaties."  (Also, sec. 27: "These three kinds of law of nations, the voluntary, the conventional, and the customary, together constitute the positive law of nations.").  Vattel then devotes six chapters to the law of treaties, during which he states (sec. 221 of Book II):  "He who violates his treaties, violates at the same time the law of nations; for he disregards the faith of treaties, -- that faith which the law of nations declares sacred..."  Vattel's treatise was well-known in the founding-era United States, where it was considered the leading authority on the law of nations.

The argument isn't conclusive, because sometimes eighteenth-century usage appeared to treat the law of nations and treaties as two separate categories.  For example, the Judiciary Act of 1789 provided for jurisdiction over "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."  At the 1787 Convention, Edmund Randolph complained that under the Articles of Confederation, Congress "could not cause infractions of treaties or of the law of nations, to be punished." (Farrand's Records, vol. 1, p. 19).  So there may have been two common uses of the phrase "the law of nations," one including treaties and one meaning (presumably) only unwritten law.  It's not clear which was intended in the offenses clause.  But it seems worth considering whether the offenses clause is an alternate source of treaty enforcement power.