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Daniel Rice: Territorial Annexation as a 'Great Power' (UPDATED)
Michael Ramsey

Daniel Rice (Duke Law School, J.D. '15) has posted Territorial Annexation as a 'Great Power' (Duke Law Journal, Vol. 64, No. 4, 2015) on SSRN. Here is the abstract: 

The Roberts Court has recently begun reviving a long-latent structural constitutional principle — that some unenumerated powers are too important to be inferred through the Necessary and Proper Clause. Under this abstractly sensible theory, some powers are too “great” to have been conferred by implication alone. This structural logic seems poised to command majority holdings in the Supreme Court. But it is largely unclear what results so undertheorized a concept might dictate. Now is the time to survey the domain of “great powers” in service of developing an appropriately modest and judicially enforceable great-powers doctrine.

This Note argues that a power to annex foreign territory is too important to be inferred through the Necessary and Proper Clause. Because the Constitution does not enumerate a territorial-acquisition power, Congress therefore disregarded great-powers limitations in annexing Texas and Hawaii through joint resolution. Congressional Globe debates from 1845 reveal that opponents of annexing Texas boldly anticipated this very argument. This Note explores their forgotten constitutional claim in the course of highlighting annexation’s historical pedigree as a great power.

Rethinking the constitutional basis for territorial expansion demonstrates that judges cannot apply great-powers principles consistently. And previously overlooked congressional annexation rhetoric supplies fresh diagnostic tools for identifying other great powers, allowing scholars to escape deceptively stale search terms. In fact, this Note marks the first attempt to identify a federal statute struck down on great-powers grounds: the Court’s decision in Afroyim v. Rusk can be fairly read as holding that involuntary expatriation is too important a power to be inferred through the Necessary and Proper Clause.

Will Baude, call your office...

But actually, I don't see this as a "gotcha" against the great powers theory.  I entirely agree with the article's main premise.  Quite plausibly, the Texas and Hawaii annexations were unconstitutional, for the reasons it states.  That doesn't mean that the United States cannot annex territory; it can (contra Jefferson) do so by treaty.  [As I have argued, the treatymaking power is not limited to Congress' enumerated powers].  President Tyler originally tried to annex Texas by treaty, and it was switched to a joint congressional resolution only after it became clear that two-thirds of the Senate would not approve.  Hawaii simply followed the (dubious) Texas precedent.  But it makes sense, with a power as connected to national identity as annexation, that a two-thirds approval be required.

UPDATE:  On reflection, I see that my comment above could be taken as criticizing the article, but it was not intended that way.  It's an excellent article, and among other things it makes that point that annexation can likely be done through the treaty power.  I entirely agree with its discussion of the annexation issue.  If I have any disagreement with it, it's with the implication (which perhaps I am imagining) that Congress' apparent lack of annexation power under the "great powers" theory is a problem for the great powers theory.

As a further aside: If indeed Congress lacked annexation power as an original matter, the Texas/Hawaii episodes might form an example of a non-judicial precedent which some originalists (possibly including me) would now find binding.  But (consistent with this article) I would limit the force of the precedent just to annexation (or just to absorption of an entire country) and would not regard it as displacing the entire great powers theory.