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01/31/2016

Michael Glennon & Robert Sloane: The Sad, Quiet Death of Missouri v. Holland
Michael Ramsey

Michael J. Glennon (Tufts University - The Fletcher School of Law and Diplomacy) and Robert D. Sloane (Boston University - School of Law) have posted The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power (Yale Journal of International Law, Vol. 41, No. 2, Page 51, 2015) on SSRN.  Here is the abstract:   

Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This premise, upon which the core of the Court’s subsequent analysis relied, is not, as the orthodox reading suggests, a mere clear-statement rule. By its terms, it is mandatory rather than precatory; and it cannot be reconciled with Holland. It abjures Holland’s holding that a treaty and its implementing legislation must be evaluated together and that, under the Tenth Amendment, the validity of the latter depends upon the constitutionality in this regard of the treaty itself. Further, the federalism-based canon of constitutional avoidance and the background principle on which the Court relied both tacitly, but necessarily, presupposed that Holland is no longer good law. Holland nonetheless continues to represent the most sensible and defensible reconciliation of the tension between the Treaty Clause and the Tenth Amendment. By abandoning Holland, the Court has interpreted the Constitution as disabling the nation from honoring international obligations of the sort at issue in Medellín v. Texas — in which the Court held that the federal government can do what Bond now holds it cannot. Bond took a lamentable step backwards for the United States, recreating one of the paramount problems that beset the nation under the Articles of Confederation.

My take on Bond is here.  I sort of agree with this paper and sort of don't.  On one hand, I agree that there is a structural problem with allowing the U.S. to enter into treaties which it can't enforce domestically.  (Although, that problem can be solved with a self-executing treaty, which makes this issue less important than internationalist writers seem to think it is).  I think it's right that the implementing power should go to the full extent of the treatymaking power, and that Bond, to the extent it suggests otherwise, is mistaken.  On the other hand, as I argue in my paper, I think federalism implies two interpretive guidelines in evaluating both treaties and their implementing legislation.  One of those is that the treaty should not be read to override federalism values if it is ambiguous.  So while I agree that the treaty and the implementing legislation should be read in parallel, I conclude from this proposition not that federalism should be ignored in interpreting the implementing legislation, but that it should be used in interpreting the treaty.