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03/16/2016

Can Treaties Stomp on Powers that are Otherwise Reserved by the Tenth Amendment?
Andrew Hyman

The Tenth Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Does this actually mean that no powers whatsoever are reserved to the states, if the President and two-thirds of a quorum of the Senate decide to make a treaty that extinguishes those powers?  Alexander Hamilton thought so.  He wrote in 1796: “a Treaty of the Union could embrace objects the internal regulation of which belonged to the separate authorities of the States.”  To me, that just doesn’t seem correct.  No one disputes that, when the United States makes a commercial treaty, Congress has power to suspend that treaty, as a matter of domestic law, by enacting contrary legislation.  See Whitney v. Robertson, 124 U. S. 190 (1888).  But suppose a non-commercial treaty, lacking a termination clause, treads upon the powers ostensibly reserved to the states under the Tenth Amendment.  If such a treaty is really constitutional, then it could not be suspended by anyone as a matter of domestic law --- not by the states given the Supremacy Clause, nor by Congress given that the treaty involves no enumerated power of Congress, nor by the President given that the executive branch has no power to terminate a treaty in violation of its terms.  So, if a treaty that lacks a termination clause treads upon powers reserved by the Tenth Amendment, then the treaty cannot possibly be suspended unilaterally by the United States as a matter of domestic law, no matter how obsolete the treaty becomes or how nasty the other contracting nation becomes.  And that kind of destruction of political liberty strikes me as very unlikely, if not absurd.

My tentative conclusion is that the President cannot, even with the advice and consent of the Senate, ordinarily make a treaty that involves the reserved powers of the states; in other words, the Treaty Power does not delegate all governmental power from the states to the federal government.   If the federal government wishes to make a treaty that involves powers reserved to the states under the Tenth Amendment, then in my view the treaty would have to include an adequate effective date such as the date upon which a state enacts implementing legislation, or an adequate expiration date such as the date upon which that state decides to enact legislation contrary to terms of the treaty.  I have previously written that a treaty’s termination provisions determine whether it can alternatively be accomplished as an “agreement” instead of as a “treaty”, and so there is a feeling of déjà vu in considering whether termination provisions also determine whether a treaty can involve Tenth Amendment powers.  But that’s my tentative conclusion. 

This general subject was discussed recently in the U.S. Supreme Court case of Bond v. United States (2014).  The majority did not reach the constitutional issue.    In a concurring opinion, Justice Alito said he would protect a state’s reserved powers by limiting treaties to “matters of legitimate international concern," but I have always found that test extremely malleable and arbitrary as to treaties, not to mention statutes.  After all, I doubt Justice Alito would want the U.S. Supreme Court to judge whether all federal statutes address “matters of legitimate national concern,” or judge whether all state statutes address “matters of legitimate state concern,” untethered to anything written in the Constitution.  In another concurring opinion, Justice Scalia said that he had no objection to a self-executing treaty that controls powers that are otherwise reserved by the Tenth Amendment.  Justice Scalia was a great writer and a great judge, and his opinion in this case is very intriguing.  I think he was right to jettison the “matters of legitimate concern” test, but wrong to let the Treaty Power totally swallow up the Tenth Amendment.  

This being the presidential campaign season, I should also mention that Senator Ted Cruz wrote an essay titled "Limits on the Treaty Power" in 2014. Cruz concluded: "The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people."  Sounds correct to me.

This being the Originalism Blog, I should mention as well Mike Ramsey's interesting 2008 article concluding that "the Constitution's original meaning most likely did not include subject matter limitations on treaty-making."  Mike would probably confirm, however, that that 2008 article did not address the extreme type of entanglement described above, by which a treaty strips power from states while preventing revocation in the manner that all other treaties are revocable.  Essentially, I think Mike's conclusion would mean there is another way to amend the Constitution, aside from Article V, because a completely irrevocable treaty would amount to a constitutional amendment in all but name.  The powers reserved by the Tenth Amendment were generally understood to include legislative powers not delegated to Congress, and those powers must really be "reserved" if we are to avoid constitutional amendments forced upon the nation by the President and two-thirds of a quorum of the Senate.