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Federalism and the Treaty Power: The Scope of the Treaty Power
Mike Rappaport

Last week, the Supreme Court decided Bond v. US, which raised the issue whether a federal statute, justified as an attempt to give effect to a treay, could reach local behavior. While the Court held that the statute did not reach the local conduct based on the federalism canon of statutory contruction, I am interested in the related constitutional issues. Justices Scalia, Thomas, and Alito all believed that the statute reached the local conduct and therefore discussed the constitutional issues.

There are two basic questions raised by these justices’ discussion: (1) Whether it is constitutional for a treaty to be made that does not involve international issues, but only domestic matters?; (2) Whether it is constitution for a statute to be passed that exceeds Congress’s enumerated powers and therefore can only be justified as necessary and property to the Treaty Power?

In the decision, Justices Scalia and Thomas both answered no as to both issues. Justice Alito answered no as issue 1, saying nothing about issue 2. I thought I would briefly discuss each of these issues. In this post, I discuss the first issue: The Scope of the Treaty Power. (I should note that I am not an expert in this area and therefore my remarks here should be taken as preliminary.)

What is the scope of the treaty power? What subjects can it address? There are three leading positions:

1. The Treaty Power is limited by the enumeated powers of the federal government.

The Treaty Power is limited by the traditional subjects of treaties – that is, international matters.

The Treaty Power is essentially unlimited, extending to any subject the US and another country want to enter into a treaty about.

The first theory – that the Treaty Power is limited by the enumerated powers – I do not find textually plausible. Certainly, the Treaty Power is not expressly limited by the enumerated powers. Nor do the enumerated powers suggest that they limit the Treaty Power. For example, the Constitution says that “Congress” has the power to regulate interstate commerce. It does not apply to the President and the Senate when making treaties.

The third theory – that the Treaty Power is esssentially unlimited – also seems problematic. It seems unlikely that the constitutional enactors, having placed significant limits on the remainder of the federal government, would have allowed the President and the Senate to avoid any restrictions on their agreements – agreements which would the supreme law of the land.

I have therefore long been attracted to the second theory. The textual limitation on treaties – to those that have been the traditional subject of treaties – derives the federalism limit in a textually plausible way. Moreover, Justice Thomas’s opinion provides significant evidence that people at the time interpreted the Treaty Power in this way. It is true that this interpretation would allow the President and the Senate to extend into the area of state powers more than the Congress can under its enumerated powers, but there was a check on the Treaty Power. The Senate had to ratify the Treaty by a two thirds vote and the Senate at the time was elected by the state legislatures and therefore was seen as representing the states.

One significant question is how one draws the line as to international matters. In the modern world, other countries genuinely appear to be concerned about how a country treats its own citizens. Why treat that as not being a matter of international concern? For one, if one treated that as a matter of international concern, then that limitation would no longer be a real limitation. The second category would largely collapse into the third category. For another, there is some reason to believe that people at the time would not have interpreted the provision in that way. Someone might argue that at the time of the Constitution, the US was benefited by other countries giving their own citizens freedom. George Washington’s farewell speech might be seen as supporting that view. Yet, the better interpretation of the materials supplied by Thomas is that such a treaty would not have been viewed as involving a matter of international concern.

Of course, if there were some treaties of that sort, that would count against this interpretation. And if there were many treaties of that sort, that would provide strong evidence against the interpretation.

(Cross Posted at the Liberty Law Blog)