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02/28/2013

The Treaty Power: Its History, Scope and Limits, by Oona Hathaway et al.
MIchael Ramsey

Recently published in the Cornell Law Review (Vol. 98, No. 2) -- The Treaty Power: Its History, Scope and Limits, by Oona A. Hathaway, Spencer Amdur, Celia Choy, Samir Deger-Sen, John Paredes, Sally Pei & Haley Nix Proctor.  Here is the abstract:

This Article examines the scope of the treaty power under the U.S. Constitution.  A recent challenge in the courts has revived a debate over the reach and limits of the federal government’s treaty power that dates to the Founding. This Article begins by placing today’s debate into historical perspective—examining the understanding of the treaty power from the time of the Founding, through the Supreme Court’s landmark decision in 1920 in Missouri v. Holland, and up to the present. It then provides a systematic account of the actual and potential court-enforced limits on the treaty power—including affirmative constitutional limits, limits on implementing legislation, and limits on the scope of the Article II treaty power itself. In the process, the Article develops a detailed pretext test that courts could use to assess whether the federal government has exceeded its Article II authority. Yet even this elaborated pretext test is unlikely to be used to invalidate many treaties. Hence the most important protection against abuse of the treaty power comes not from the courts but from structural, political, and diplomatic checks on the exercise of the power itself—checks that this Article describes and assesses. These checks provide for “top-down” and “bottom-up” federalism accommodation. The result is a flexible system in which the states and the federal government work together to preserve the boundary between their respective areas of sovereignty. The Article concludes that this flexible system of accommodation is likely to be more effective than any court-enforced restraint at protecting against abuse of the federal treaty power.

This article recounts some interesting history, but it doesn't deliver on what I first thought would be its goal -- to defend Congress' power to enforce treaties through legislation (a power challenged in Bond v. United States, the case referenced in the abstract, and by academic commentators such as Nick Rosenkranz).  On this point, the article principally argues that there is little founding-era evidence because the Framers assumed treaties would be self-executing. 

If true, that would seem to favor, not undermine, the argument that Congress lacks treaty enforcement power.  I doubt, though, that the claim is true.  While I think the Framers thought many treaties would be self-executing, they likely also thought some enforcement would be needed.  For example, I doubt they thought treaties (even self-executing treaties) would themselves directly create crimes.  Like the treaty in Bond, eighteenth- and nineteenth-century treaties were more likely to proscribe conduct without specifically setting out how wrongful conduct would be punished.  Perhaps such conduct could be punished under common law (depending on what the Framers thought about common law crimes), but even so a power to enforce by statute would be an important tool.  So I think the paper is too quick to conclude that there are no useful originalist arguments to be made on the point.