Beyond Medellin: reconsidering federalism limits on the treaty power.

• Author: Beiter, Benjamin

INTRODUCTION

The Constitution recognizes three sources of law as the supreme law of the land: the Constitution itself, federal laws passed in pursuance of the Constitution, and treaties made under the authority of the United States. (1) In addition to this recognition, the Constitution places limits on the ability to create and modify the law through each of these sources of law. Changes to the Constitution itself must be made through a formal amendment process. (2) The legislative power is limited by the enumeration of particular powers granted to Congress." (3) The power to make treaties is vested in the President, and subject to only one explicit limitation: a two-thirds vote in the Senate. (4)

Both statutes and treaties may become the supreme law of the land, and they may even pursue the same ends. Why, then, are the limits on the legislative power so different from the limits on the treaty power? If principles of federalism impose limits on the power of the federal government to legislate, does federalism constrain the power to make treaties as well? (5)

The answer to this question was long thought to be settled by Missouri v. Holland, (6) a 1920 case that dealt with the power of Congress to pass legislation implementing the 1916 Convention for the Protection of Migratory Birds (7) between the United States and Great Britain. The majority opinion written by Justice Holmes held that "[i]f the treaty is valid there can be no dispute about the validity of the statute under Article I, [section] 8, as a necessary and proper means to execute the powers of the Government." (8) Holmes went on to find that the Tenth Amendment did not bar legislation implementing the treaty despite the fact that regulation of migratory birds would be beyond the reach of Congress's enumerated powers absent the treaty. (9) In short, the treaty power was not subject to federalism limits.

In light of recent shifts in the Supreme Court's federalism jurisprudence, it is not clear that Missouri v. Holland was decided correctly. After largely abandoning judicial enforcement of federalism limits for five decades following the New Deal, the Court in recent years has returned to the idea of judicially enforceable federalism limits in a number of areas, most notably the commerce power. (10) With federalism limits emerging and reemerging in these other areas, the question of whether federalism constrains the treaty power is again the subject of debate.

The Supreme Court's recent decision in Medellin v. Texas (11) may have signaled the Court's willingness to enforce federalism limits on the treaty power. While Medellin does not explicitly address Missouri v. Holland, it does suggest a presumption against serf-executing treaties-functionally, this is a presumption against preemption of state law by international obligations. The questions regarding congressional power (and the continued validity of Missouri v. Holland) remain open.

This Note aims to evaluate possible federalism limits on the treaty power in the wake of Medellin. Part I takes a closer look at Missouri v. Holland and precisely why it is problematic. Part II briefly traces the death and return of judicially enforceable federalism limits from the New Deal to the Rehnquist Court's "new federalism." Part III examines the emergence of Medellin's presumption against self-executing treaties. Part IV evaluates the presumption against self-executing treaties and considers other possible limits on the treaty power.

1. WHY MISSOURI v. HOLLAND IS PROBLEMATIC

   The Court in Missouri v. Holland addressed the power of Congress to pass legislation implementing a treaty. The history of the case shows that the treaty in question was specifically intended to enable Congress to legislate beyond the limits of its enumerated powers. Justice Holmes's opinion thus upholds not only a broad view of the treaty power, but also the idea that the federal government can increase the power of Congress by treaty rather than by constitutional amendment. This Part addresses the historical background of the case, the opinion by Justice Holmes, and some of the problems posed by the decision.

   1. Historical Background of Missouri v. Holland

      Although the holding of Missouri v. Holland dealt with the power of Congress to legislate pursuant to the 1916 Migratory Bird Treaty with Great Britain, (12) the controversy actually began several years earlier. (13)

      Active efforts in Congress to pass legislation protecting migratory birds began in 1904, ultimately succeeding in 1913. (14) Opponents of the legislation contended that protection of migratory birds exceeded the powers delegated to the federal government and fell within the police power reserved to state governments. (15) Even proponents of the legislation were unsure of its constitutionality. (16)

      Federal district courts in Arkansas (17) and Kansas (18) agreed that the Act of 1913 was an unconstitutional interference with the rights, powers, and property of the states. (19) Seeking to prevent the eventual invalidation of the Act of 1913 by the Supreme Court, the Senate passed a resolution recommending negotiation of a treaty in order to provide the federal government with the necessary authority to regulate migratory birds. (20) A treaty with Great Britain (on behalf of Canada) was swiftly concluded and approved in 1916. (21) This treaty aimed to get around the potential invalidity; "if the United States and Canada agreed to cooperate to protect the birds, Congress could enact the legislation it had previously adopted under its power to do what is 'necessary and proper' to implement the treaty." (22) As Professor David Golove noted, "[i]f ever the federal government could be charged with bad faith in making a treaty, this had to be the case." (23)

   2. Justice Holmes's Opinion in Missouri v. Holland

      In 1918, Congress passed the Migratory Bird Treaty Act (24) to implement its new treaty obligations. The 1918 Act was quickly challenged in court. Missouri v. Holland vindicated proponents of the treaty: "[t]he treaty did make a difference in judicial outcome." (25)

      Writing for the Court, Justice Holmes noted that the Tenth Amendment's reservation of powers not delegated to the federal government was no bar to the 1918 Act. (26) There are three major steps in Holmes's analysis--the validity of the statute, the validity of the treaty, and the potential bar of the Tenth Amendment.

      Since the power to make treaties is expressly vested in the federal government by Article II of the Constitution and those treaties are the supreme law of the land under Article VI, Holmes reasoned that the statute must be valid if made pursuant to a valid treaty. (27) That is, despite the fact that a statute would otherwise exceed the enumerated powers of Congress, (28) it may be valid as a necessary and proper means of implementing treaty obligations. (29)

      Despite the potential invalidity of the 1918 Act in the absence of a treaty, Holmes determined that the limits on the treaty power are not identical to the limits on congressional power. (30) Under Article VI, statutes are the supreme law of the land when made in pursuance of the Constitution. (31) Treaties, on the other hand, are supreme when made under the authority of the United States. (32) To Holmes, this distinction suggested different limits on the power to legislate and the power to make treaties. (33)

      In the absence of any express prohibition in the Constitution against such a treaty, the only question for Holmes was whether the treaty was "forbidden by some invisible radiation from the general terms of the Tenth Amendment." (34) In Missouri v. Holland, the treaty presented a conflict between a weak state interest and a strong federal interest. Missouri's claim was premised on the presence of migratory birds within its jurisdiction, but "[w]ild birds are not in the possession of anyone." (35) Balanced against this weak state interest, Holmes took a broad view of federal interests. Since protective regulation of such birds could only be achieved at the national and international level, the federal interest was greater. (36) Since the treaty and statute in question were otherwise valid means of achieving this national goal, the Tenth Amendment in Holmes's view was no bar to the treaty or its implementing legislation. (37)

   3. Problems Posed by Missouri v. Holland

      The Court's decision that the treaty power is not subject to Tenth Amendment limits has endured for nearly nine decades, but it has not been without its critics. Michael D. Ramsey describes the impact of Missouri v. Holland:

      [T]he Supreme Court ... came close to saying there are no constitutional limits on treaties' subject matter. That conclusion, though, has worried advocates of a meaningful federal system, both before and after Holland. It seems to strike at the very idea of limited national powers--that, as Madison said, the national government's powers are "few and defined." (38) The end result of Missouri v. Holland is that when the federal government is unsure of the constitutionality of a statute, it can simply enter into a treaty on that subject to enlarge the power of Congress to address the previously invalid issue. (39)

      Missouri v. Holland also had the unfortunate effect of resurrecting the myth that treaties are not subject to any constitutional limits (40) by emphasizing that federal statutes are supreme when made in pursuance of the Constitution, whereas treaties are supreme when made under the authority of the United States. (41) The difference in wording was intended to make clear that existing treaties at the time of the Constitution's ratification would continue to be enforced. (42) The suggestion that treaties need not be made in pursuance of the Constitution (and therefore are not bound by its limits) was seized upon by Antifederalists in the ratification debate. (43) Holland resurrected this myth for the modern era, and it has proved persistent. (44)...