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01/14/2013

Richard Pildes and Nicholas Rosenkranz on Treaties and Enumerated Powers (Updated)
Michael Ramsey

At Volokh Conspiracy, Nicholas Rosenkranz (Georgetown Law) and Richard Pildes (NYU Law) will have an online debate this week on the question whether a treaty can increase the legislative powers of Congress (that is, whether Congress can enact legislation to enforce a treaty on matters otherwise beyond Congress' enumerated powers).  Professor Rosenkranz notes:

The issue is of great theoretical importance, because, at least in my view, Missouri v. Holland is in apparent tension with the doctrine of enumerated powers and the basic structural principle of limited federal legislative power. The issue is also of great and increasing practical importance, as we enter into ever more international legal commitments, many of which implicate what would seem to be paradigmatic state and local matters, far from traditional international concerns.

The debate is also timely, because there is a certiorari petition currently pending at the Supreme Court, United States v. Bond, which raises this exact issue. (I filed an amicus brief on behalf of the Cato Institute, urging the Court to grant the petition.) Bond has been relisted six times, which is unusual – suggesting that at least some Justices are interested.

UPDATE:  Here is Rick Pildes' initial post: Does Congress Have the Power to Enforce Treaties?  Part I.