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Was the U.S. Acquisition of Hawaii Unconstitutional? [Updated]
Michael Ramsey

I think so.  The U.S. annexed Hawaii pursuant to a joint resolution of Congress in 1898.  It was not done by treaty (a treaty of annexation had been signed in 1893, but newly elected President Grover Cleveland withdrew the treaty from the Senate). It was not done as part of a military operation (though it was done during the Spanish-American War). So where did Congress get the enumerated power to pass the resolution?

Congress has power to admit new states to the Union (Article IV); perhaps this gives Congress power to acquire territories for the purposes of making them states (as with Texas).  Hawaii did eventually become a state (61 years later) but it does not appear that Congress contemplated statehood at the time its annexation.  So I doubt this power works as the basis for annexation.

Congress also has power to provide for an army and a navy, which I think implies the power to establish bases, including overseas bases.  Thus Congress could have responded to the strategic location of the Hawaiian Islands in the context of the Spanish-American War by acquiring bases there.  But I don't think this power is enough to support the complete takeover of the entire territory.

At the time, Congress may have believed that it had extra-constitutional power to annex territories as part of the inherent sovereign power of the United States.  The Supreme Court suggested as much in Jones v. United States in 1890 (regarding acquisition of "guano islands").  But the Court's "sovereign powers" cases are extremely dubious as a matter of original meaning, for reasons I discuss in the early chapters of The Constitution's Text in Foreign Affairs. (In particular, they seem flatly contrary to the 10th Amendment.)  The United States may have inherent sovereign powers under international law, but as a matter of domestic constitutional law those powers aren't vested in the federal government (as opposed to the sovereign people) unless the Constitution says they are.

Thus I don't see an originalist solution.  But Congress did eventually make Hawaii a state, so perhaps that cures the constitutional violation.

(Thanks to Andrew Hyman for suggesting this puzzle.  And aloha from Napili, Maui.)

UPDATE:  This interesting student note by Daniel Rice (Duke JD '15) addresses the topic as it relates to the necessary and proper clause: Territorial Annexation a a "Great Power".  (Thanks to Will Baude for the pointer.)

COMMENT FROM ANDREW HYMAN:  The United States annexed Hawaii via the Newlands Resolution, which passed the Senate by a two-thirds majority vote of 42-21 in 1898, and also passed in the House.  So, like many treaties, the Newlands Resolution may well have been a treaty by another name; it is well-established that treaties can explicitly say that they will not take effect until approved by the House of Representatives.  But even if Congress had approved the Newlands Resolution by a slim majority, it did not have to rely upon the treaty power, given that the international character of the Newlands Resolution was of very short duration, and given that Congress wanted Hawaii not just for military purposes but also as a commercial bridge to Asia (see the Constitution’s Foreign Commerce Clause).  Whether it was necessary and proper for the United States to help install a compliant government in Hawaii prior to 1898, and to wait so long after 1898 to grant statehood, are additional interesting questions, to which I do not know the answers.  But I do know that the prospect of statehood for Hawaii was on the table virtually from day one, as Roger Bell has explained: "[W]hen it approved Hawaii's Organic Act in 1900...the House and Senate rejected amendments stating that the act should not be interpreted as implying a congressional promise of future statehood.  The defeat of these amendments helped to establish Hawaii as an incorporated territory."  So, unlike a place like American Samoa, the annexation of Hawaii could be plausibly justified in terms of the congressional power to admit new states.