The Treaty Power

June 17, 2014|Bond, Mike Ramsey, The Treaty Power

Federalism and the Treaty Power: A Response to Mike Ramsey

The Faulkner murals of the Declaration and Constitution, on display in the Rotunda for the Charters of Freedom at the National Archives.

In a prior post, I defended Justice Thomas’s position in Bond that treaties can only extend to matters involving intercourse with other nations. Mike Ramsey, who unlike myself is an expert regarding the Treaty Power, disagrees with this position, but I am not persuaded.

Justice Thomas had argued in Bond that the Treaty Power is limited by the traditional subjects of treaties, such as war, peace, and trade between nations. According to Thomas, the original meaning of treaty was an agreement “addressing matters of intercourse between nations rather than domestic regulation.”

Mike Ramsey adopts a different interpretation of the Treaty Power – according to Mike, a treaty must merely cover subjects that are genuinely of concern to the parties to the treaty. Mike then argues that the reason why treaties in the 18th century were restricted to matters such as war, peace, and trade between nations is that those happened to be the subjects that nations were concerned about at the time. But since nations are now concerned about additional matters, such as human rights and how a nation treats its own citizens, treaties can extend to those matters.

June 11, 2014|Bond, The Necessary and Proper Clause, The Treaty Power

The Treaty Power and the Necessary and Proper Clause

by Mike Rappaport|7 Comments

The Faulkner murals of the Declaration and Constitution, on display in the Rotunda for the Charters of Freedom at the National Archives.

In my previous post, I argued that the Treaty Power should be interpreted as allowing the President and the Senate to make treaties that involve intercourse with foreign nations, but not simply domestic matters. In this post, I discuss the second constitutional issue raised by the decisions in Bond v. US – whether Congress has the authority under the Necessary and Proper Clause to pass legislation (outside of its other enumerated powers) that carries into execution a treaty. (As with my prior post, I note that I have not fully researched this issues and therefore my views should be regarded as preliminary.)

In analyzing this question, I will assume that the Treaty Power only allows treaties that involve intercourse with foreign nations. If that is true, there are at least two significant positions as to Congress’s authority to carry those treaties into execution:

1. Congress can only pass legislation under the Necessary and Proper Clause that carries into execution Congress’s other enumerated powers, but not the President and Senate’s Treaty Power.

2. Congress can pass legislation under the Necessary and Proper Clause that carries into execution the President and Senate’s Treaty Power.

The first position was articulated by Justice Scalia’s concurrence in Bond, and was joined by Justice Thomas. It was first developed by Nick Rosenkranz. Under this interpretation, while the President and Senate could enter a treaty that involved intercourse with foreign nations that extended beyond Congress’s enumerated powers, Congress could not pass legislation that carried that treaty into execution.

June 10, 2014|Bond, Federalism, The Treaty Power

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

by Mike Rappaport|1 Comment

The Faulkner murals of the Declaration and Constitution, on display in the Rotunda for the Charters of Freedom at the National Archives.

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 proper to the Treaty Power?

In the decision, Justices Scalia and Thomas both answered no as to both issues. Justice Alito answered no as to 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:

The Treaty Power is limited by the enumerated 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.

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