125. . Under a Tenth Amendment limit, it does not matter whether the Treaty Clause possibly grants some substantive powers beyond the Presidents other enumerated powers the President still could not displace reserved state sovereignty even if the Treaty Clause would otherwise grant him additional substantive powers. at 1882 (alteration in original) (quoting U.S. Const. 123. . 229F(1)(A); see also Chemical Weapons Convention, supra note 53, art. Can prove laws to be (Select all that apply) Assn v. Garamendi, 539 U.S. 396, 414 (2003) (noting that the President has a vast share of responsibility for the conduct of our foreign relations))) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring))). 75 (Alexander Hamilton), supra note 34, at 450. Note, however, that Senators were originally chosen by state legislatures rather than through direct election. 1, 44 n.158. Some treaties, like the Arms Trade Treaty,10 the United Nations Convention on the Law of the Sea,11 and the Convention on the Rights of Persons with Disabilities,12 purport to let international actors set policy in areas already regulated by the federal government. Medelln v. Texas, 552 U.S. 491, 525 (2008). 19. The United States agreed in the Convention, however, to enact domestic laws addressing chemical weapons.178 And Congress purported to enact such laws through the Chemical Weapons Convention Implementation Act of 1998. This clause gives the President the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.94 This places an obvious limitation on the Presidents power to make treaties: if fewer than two-thirds of the Senators present concur that the treaty should be made, then the United States has not made any treaty. !PLEASE HELP!!! The central thesis of this Essay is simple: the President, even with Senate acquiescence, has no constitutional authority to make a treaty with a foreign nation that gives away any portion of the sovereignty reserved to the states. 2013). !PLEASE HELP!!! 150. Bus. The Necessary and Proper Clause, combined with the Treaty, would not be sufficient to displace state sovereignty under the Tenth Amendment, according to this Essays framework. The Senate does not ratify treaties. 84. II, 2) (internal quotation marks omitted). What does the judicial branch do with laws? 124. 100. Whether one couches this as a Tenth Amendment or a structural argument, the basic point is the people, acting in their sovereign capacity, delegated only limited powers to the federal government while reserving the remaining sovereign powers to the states or individuals. 133 S. Ct. 978 (2013) (mem.) U.S. The previous part dealt with limits on the Presidents Treaty Clause power to create a treaty in the first place. But even with a proper understanding of the limits on these treaty powers, the Court still could have rejected a facial challenge to the Migratory Bird Treaty or its implementing Act. . Stat. The Senate has the sole power to confirm those of the Presidents appointments that require consent, and to ratify 87. .102, The Migratory Bird Treaty at issue in Missouri v. Holland was a non-self-executing treaty.103 Rather than challenge Congresss authority to pass a statute implementing this treaty, Missouri challenged the Presidents authority to make the treaty in the first place.104 Missouri argued that the Presidents power to make treaties was limited by the Tenth Amendment, such that a treaty could not address subject matter that did not fall within Congresss enumerated legislative powers.105 Justice Holmes phrased the question presented, with evident disdain, as, The treaty in question does not contravene any prohibitory words to be found in the Constitution. Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. After all, the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.115 Treaties are agreements like contracts, and all law students learn that contracts can be breached for many reasons, including efficiency. United States v. Bond, 681 F.3d 149, 162 n.14 (3d Cir. The United States Constitution provides that the president shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur (Article II, section 2). Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). 83. Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause , 2006 U. Ill. L. Rev. Two lower federal courts declared the statute invalid, finding that it was not within any enumerated power of Congress, and the Department of Justice feared that the statute might meet the same fate in the Supreme Court. !PLEASE HELP!!! 64 (John Jay), supra note 34, at 390. to make Treaties are not the same thing.152. In any event, there are good arguments to impose additional limits on Congresss power to implement treaties, and thus to reject Justice Holmess statement. !PLEASE HELP! Congress has specifically defined powers enumerated in Article I, Section 8. 78. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (quoting 10 Annals of Cong. I. Id. [A]llocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States . Whiskey Rebellion . Id. 3. The people, as initial holders of their sovereignty, agree to cede some power to form society and government for their collective prosperity and security. Congress has the power to: Make laws. See id. Perhaps another one of Congresss enumerated powers such as the Commerce Clause might happen to give Congress that authority. The treaty was made [and] the statute enacted . The President, consequently, may have the authority to promise a foreign nation that the United States will enact certain domestic legislation even if Congress has no power to enact this legislation, or the President believes that there is no chance that Congress would enact the legislation even if it had the power.116 In our system of limited government, the President does not have complete power; only Congress exercises the federal legislative power, and significant powers have been reserved for the states. . Bond will have to resolve whether the Chemical Weapons Convention Implementation Act of 1998 can be applied to Bonds particular local conduct in the midst of a domestic dispute. Carol Anne Bond lived near Philadelphia, and she sought revenge after finding out that her close friend, Myrlinda Haynes, was pregnant and that the father was Bonds husband.65 Bond harassed Haynes with telephone calls and letters, which resulted in a minor state criminal conviction.66 Bond then stole a particular chemical from her employer, a chemical manufacturer, and ordered another chemical over the internet.67 She placed these chemicals on Hayness mailbox, car door handle, and front doorknob.68 As a result, Haynes suffered a minor burn on her hand.69, Bond probably could have been charged with violations of state law, like assault,70 aggravated assault,71 or harassment.72 Instead, the federal government stepped in and charged Bond with violating the Chemical Weapons Convention Implementation Act, alleging that she used chemical weapons when she placed chemicals on Hayness mailbox, car door handle, and front doorknob.73, Bond argued that Congress lacked the constitutional authority to enact the Act, at least as applied to her conduct in the domestic dispute.74 The district court rejected her argument.75 Bond then pled guilty on the condition that she retained her right to appeal her constitutional argument.76 The district court sentenced her to six years imprisonment.77. The Third Circuit held that Bond lacked standing to raise this argument,78 and the U.S. Supreme Court unanimously reversed in finding that Bond did have standing to challenge the Act as applied to her.79 On remand, the Third Circuit rejected Bonds constitutional argument on the merits, finding that Congress had authority to enact the Chemical Weapons Convention Implementation Act under the Necessary and Proper Clause.80 The Third Circuit quoted Justice Holmess 1920 opinion, Missouri v. Holland, for the proposition that, if a treaty is valid, there can be no dispute about the validity of the statute [implementing it] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. The Federalist No. !PLEASE HELP!!! . Sovereignty should be the touchstone of any debate over the limits on the treaty power. 39 (James Madison), supra note 34, at 242. !PLEASE HELP! The people in turn formed our government. Some have said that we should not fear such broad power to implement treaties, because political actors in the Senate the body most reflective of state sovereignty sufficiently protect state interests.163 In many ways, this line of thinking is consistent with the view that courts should not enforce limits on Congresss enumerated powers, but should rather be content that the political process can safeguard federalism and the separation of powers.164. The Role of Congress in Adopting International Treaties. Assume arguendo that the Migratory Bird Treaty in Missouri v. Holland and the Chemical Weapons Convention in Bond were actually self-executing treaties. The Appointments Clause of the United States Constitution grants the president the authority to nominate, and with the advice and consent of the Senate, appoint officers of But it bears mentioning that one could imagine a middle position that avoids some of the deleterious consequences of limiting the Presidents Treaty Clause power. See Natl Fedn of Indep. !PLEASE HELP!!! . at 152 (quoting Missouri v. Holland, 252 U.S. 416, 432 (1920)). develop, produce, otherwise acquire, stockpile or retain chemical weapons or use them.55 It further requires signatory states to prohibit individuals from acting in a manner that would violate the Convention if the individuals were a signatory state.56 But the Convention does not contain self-executing provisions that obligate states to impose these duties on individuals. 120. v. U.S.), 2004 I.C.J. 138. !PLEASE HELP!!! John Lockes Second Treatise on Civil Government argued that sovereignty initially lies with the people.29 When Locke wrote this in the seventeenth century, it was a novel idea that shattered the prevailing view that sovereignty lay with the English monarch or parliament. 65. The 1998 Act adopted the Conventions definition of chemical weapon, which covers any toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter.62 And toxic chemical, in turn, includes any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.63 The statute does include an exemption for a toxic chemical intended for [a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.64 Nevertheless, the chemical weapons crime created by the 1998 Act was not tailored to prohibit only weapons of mass destruction, even though that was the express purpose of the Convention. at 2602 (opinion of Roberts, C.J.). . 21. The Framers divided governmental power in this manner because they had seen firsthand, from their experience with Britain, that concentrated authority predictably results in tyranny. 18 Pa. Cons. 10609; see also Medelln v. Texas, 552 U.S. 491, 50406 (2008). VII. If no enumerated power justifies the creation or implementation of a treaty, the federal government is acting beyond its delegated authority, thus violating the sovereignty of the states and the people. As the Court has reminded us in the past two decades, there are still limits on this power. This principle was most clearly enshrined in the Tenth Amendment. 106. Nor can treaties violate independent constitutional bars. how to Appropriate Funds (much money will be spent for what purpose) One of the important powers of the senate is that it must approve. (granting certiorari). That is precisely why the Tenth Amendment and the Constitutions structure place limits on the Presidents power to make treaties. Holland, 252 U.S. at 43334 (The only question is whether [the Migratory Bird Treaty Act] is forbidden by some invisible radiation from the general terms of the Tenth Amendment.). II, 2) (internal quotation marks omitted). Treaty power refers to the Presidents constitutional authority to make treaties , with the advice and consent of the senate. Dual sovereignty therefore properly constrains the federal governments treaty power. !PLEASE HELP!!! When foreign policy issues take center stage in American politics, much of the focus tends to be on the executive branch. . As Jay remarked: The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.39, Hamilton, too, did not trust the President alone to wield the hefty treaty power, as he feared that one could betray the interests of the state to the acquisition of wealth.40, At the same time, the Framers realized it was impractical to expect a collective body, like Congress or the Senate, to negotiate the minutiae of treaties. In these hypothetical scenarios, the President would not have simply made a promise among nations. 4 (John Jay), supra note 34, at 40 (emphasis omitted). See e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (A facial challenge to a legislative Act . 11. 1996) (footnotes omitted). 20. A 1907 memorandum approved by the Secretary of State stated that the limitations on the treaty power that necessitate legislative implementation may "be found in the . 36(1)(b)). Unlike Missouri v. Holland, Bond presents the Court with an as-applied challenge. CQ Transcriptions, Sen. Chuck Schumer Holds a Hearing on the Nomination of Judge Sonia Sotomayor to Be an Associate Justice of the U.S. Supreme Court, Wash. Post (July 14, 2009, 4:24 PM), http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071402630.html. Both involve the application of a federal statute to a wholly local assault covered by state criminal law. Constitutional Limits on Creating and Implementing Treaties, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071402630.html, http://articles.washingtonpost.com/2012-06-22/opinions/35461763_1_royalty-payments-reagan-adviser-sea-treaty, http://www.refworld.org/pdfid/429c2fd94.pdf. VII(1) (Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.). That said, Missouri v. Holland probably would have to be overruled if one believes that Congress lacked the Commerce Clause authority to implement the Treaty legislatively. Congresss implementing statute went far beyond the purpose of the Convention by covering much more than weapons of mass destruction. Some of the same concerns addressed in the previous part about the Presidents Treaty Clause power will also be present in analyzing Congresss power to implement treaties, but the two are not necessarily intertwined. McCulloch v. Maryland, 17 U.S. (4 Wheat.) So when the President makes any promise that the United States will take future action that can only be undertaken by other governmental actors, the President never knows for certain whether the United States will follow through and honor this promise. Opened for signature Jan. 13, 1993, 1974 U.N.T.S. Cf. So it is a non-self-executing treaty that does not automatically have effect as domestic law.57, The U.S. Senate ratified the Convention in 1997.58 A year later, Congress acted to implement the Convention by creating domestic law that would prohibit individuals from violating the Convention, the Chemical Weapons Convention Implementation Act of 1998.59. First it creates a national government consisting of a 1. If the Tenth Amendment never limits the Presidents authority to enter into a non-self-executing treaty, then Missouri v. Holland would have correctly held that the Tenth Amendment did not deny the President authority to enter into the non-self-executing Migratory Bird Treaty. See The Federalist No. 67. As the American people exercised their sovereign will in constituting our government, the Framers did not create a single governmental structure that possessed all power. . 229229F (2012); 22 U.S.C. For example, Congress has the power to tax and spend, to regulate commerce with foreign nations and among the several states, and to declare war.90 The Constitution therefore withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.91. 41. Self-executing treaties will therefore raise questions about the Presidents Treaty Clause power but not Congresss power to implement these treaties. Executive Powers In light of the breadth of Congresss implementing statute for the Chemicals Weapons Convention, it should come as no surprise that it was used to prosecute someone for a domestic dispute involving wholly local conduct. !PLEASE HELP!!!! There is nothing in [Article VI, the Supremacy Clause,] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. But the governments power emanates from the sovereign will of the people. If Congress has the power to create a federal criminal code that reaches domestic disputes like the one in Bond, then it is unclear how the states retain any police power that cannot be exercised by the federal government. The Framers explicitly enumerated the powers of the federal government, and all unenumerated powers were reserved to the States respectively, or to the people.117 If the states retain some sphere of sovereign authority over which the federal government has no power, then all attempts by the federal government to infringe on this sovereign state authority should be unconstitutional regardless of whether the federal government tries to do so through the Presidents Treaty Clause power or Congresss enumerated powers. Who has the power to ratify treaties in the United States? The Presidents power to make treaties is limited by the procedures required by the Treaty Clause. The consent of the House of Representatives is also necessary for the ratification of trade agreements and the confirmation of the Vice President. !PLEASE HELP! According to them, the Treaty Clause is not an independent substantive font of executive power, but instead a vehicle for implementing otherwise-granted national powers in the international arena. Id. The Federalist No. The Supreme Court has also repeatedly recognized that our constitutional structure prevents circumvention of enumerated limits on federal power, even if the Constitutions text does not explicitly prohibit a certain exercise of federal power. Does the House have the power to approve foreign treaties? Such legislation would lack constitutional authority just like the Gun-Free Schools Zone Act invalidated in United States v. Lopez145 or the parts of the Violence Against Women Act struck down in Morrison.146 The Supreme Court has not had to clarify how closely the implementing legislation must fit with the treaty. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). The President is the Commander in Chief, can grant Pardons, appoints and commissions Officers of the United States with the advice and consent of the Senate, makes recess appointments, must take Care that the Laws be faithfully executed, and can make Treaties with the approval of two-thirds of the Senate.92 But nowhere does the Constitution give the President a general power to do whatever he believes is necessary for the public interest. (alteration in original) (quoting U.S. Const. !PLEASE HELP! . . art. The President may very well have constitutional authority to enter into promises that he knows the United States either will not, or cannot, keep. 57. The president has the sole power to negotiate treaties. The Federalist No. 47 (James Madison), supra note 34, at 298. In his 2005 Harvard Law Review article Executing the Treaty Power, Professor Nicholas Rosenkranz deftly presented both textual and structural arguments for additional limits on Congresss power to implement treaties.148 As a textual matter, Rosenkranz returned to the actual words of the Constitution by grammatically combining the Treaty Clause with the Necessary and Proper Clause: The Congress shall have Power . Sovereignty lies with the people, as Locke taught both us and the Framers. 1867, 187173 & nn.1925 (2005). So to test the limits on the Presidents power to make self-executing treaties, make one further assumption: that these hypothetical self-executing treaties cover some areas reserved for the states under our system of dual sovereignty. United States v. Morrison, 529 U.S. 598 (2000). 368 (ratified with reservations by the United States Senate on Apr. , including the prohibition and elimination of all types of weapons of mass destruction.54 The Convention mandates that signatory countries, as opposed to individuals, can never under any circumstances . The rationale for this exception would be that ceding state territory as part of a peace treaty implements the presidential decision to sacrifice part of the country during wartime in order to save the rest.136 But Lawson and Seidman would cabin this authority to cede state territory to peace settlement[s] made during wartime; the Treaty Clause power would not permit this otherwise, so the President could not cede state territory via treaty as part of ordinary commercial relations.137 Perhaps a formal congressional declaration of war, or its equivalent, generally would be required for the President to have power to cede state territory.138 This structural check would ensure that the significant power to displace state sovereignty was used only with the acquiescence of both houses of Congress when the Presidents authority is at its maximum, per Justice Jacksons famous Steel Seizure concurrence.139. Louis Henkin, Foreign Affairs and the US Constitution 190 (2d ed. Either possibility can be prevented if sufficient limits are placed on the federal governments authority to make and implement treaties. . The Constitution gives to the 18 U.S.C. In many ways, this arrangement would resemble the exception Professors Lawson and Seidman recognized regarding the Presidents Treaty Clause power,167 but it would just require Congress to act in conjunction with the President. But regardless of whether Congress had that authority, the President had the Treaty Clause power to make the treaty, even if he knew that the promise of U.S. participation could never be kept. The answer is the legislative branch can approve treaties to settle argument that are unconstitutional. Thus, the Chemical Weapons Convention Implementation Act of 1998, as applied to Bond, would only be constitutional if it were consistent with Congresss enumerated powers. Part I starts with first principles of our constitutional structure, examining sovereignty, the treaty power, and foreign affairs. An Ordinary Man, His Extraordinary Journey, President Harry S. Truman's White House Staff, National History Day Workshops from the National Archives, National Archives and Records Administration. The Federalist No. . Hope it helped! Oversight and investigations. Thomas Jefferson, Manual of Parliamentary Practice 110 (Clark & Maynard 1870) (1801) (emphasis added). But cf. It largely tracks the structural argument for limits on the Presidents power to make treaties.153 Congresss powers are explicitly enumerated in Article I of the Constitution, a major check and balance created by the Framers. The Federalist No. 81. The Federalist No. Luckily, the Roberts Court has signaled that it will recognize the limits on the federal governments treaty power. . Two-thirds of the Senate must approve of a treaty before it goes into effect. III, 1. Lawson & Seidman, supra note 125, at 63. One need not dream up fanciful hypotheticals to test the outer bounds of the treaty power. It would have been absurd for the Framers to implement multiple checks and balances for creating a system of dual sovereignty, and to explicitly delineate the Presidents and Congresss powers, only to allow the Treaty Clause power to completely displace all state sovereign authority. United States v. Bond, 681 F.3d 149, 16566 (3d Cir. If the federal Treaty Clause power could violate state sovereignty, it would disrupt our constitutional structure and encroach on state sovereignty just like in New York, Printz, and NFIB v. Sebelius. !PLEASE HELP!!! United States v. Morrison, 529 U.S. 598, 61719, 627 (2000). 64 (John Jay), supra note 34, at 389. Instead, he and the Senate would have enacted binding domestic law through treaties. See John Locke, Two Treatises of Government and a Letter Concerning Toleration 137138, 141142 (Ian Shapiro ed., Yale Univ. 112. See Lawson & Seidman, supra note 34, at 15. XYZ Affair 2009), revd, 131 S. Ct. 2355. 98. This Part will now consider the limits on the Presidents and Congresss enumerated powers to make or implement treaties. What powers does Congress have? If the ultimate power resides with the people, then the people control government, rather than the government controlling the people. This Essay suggests that Missouri v. Holland can be construed simply as rejecting a facial challenge to a particular treaty, which may have validly covered some subject matter falling within Congresss Commerce Clause authority. 140. Just because Justice Holmess reasoning in Missouri v. Holland was problematic does not necessarily mean that the Supreme Court must overrule the cases holding. at 434); Rosenkranz, supra note 13, at 187879 (noting that Missouri barely touched the question of whether an expansive executive treaty power would give Congress constitutional authority to pass enacting legislation that fell outside its enumerated powers). . Even if one accepts Justice Holmess interpretation of the Necessary and Proper Clause, there could still be limits on Congresss power to implement treaties. The Roberts Court, too, has continued to enforce structural limits on the balance of power between the federal and state governments.175 These developments may very well render Missouri v. Holland a doctrinal anachronism that stare decisis should not save.176. 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how does approving treaties balance power in the government
