Congress' treaty-implementing power in historical practice.

• Author: Galbraith, Jean
• Position: Introduction through II. The Treaty-Implementing Power in Congress from the Framing to Missouri v. Holland A. Congress' Necessary and Proper Power as a Justification for Treaty Non-Self-Execution 1. The Jay Treaty Debate, p. 59-87

Abstract

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress's power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement treaties. Notably, both supporters and opponents of a strong treaty power accepted Congress's power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed here strongly supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even when no other Article I power underlies this legislation.

TABLE OF CONTENTS Introduction I. The Current Debate Over The Treaty-Implementing Power A. Missouri v. Holland ... and Now Bond v. United States B. The Limits of the Current Debate II. The Treaty-Implementing Power In Congress From The Framing to Missouri v. Holland A. Congress's Necessary and Proper Power as a Justification for Treaty Non-Self-Execution 1. The Jay Treaty Debate 2. The Necessary and Proper Clause and Treaty Non-Self-Execution in the Nineteenth Century a. The 1815 Commercial Treaty with Great Britain b. The 1875 Commercial Treaty with Hawaii and Its Extension B. Legislation Otherwise Beyond Congress's Powers When Necessary and Proper to Implement Treaty Obligations 1. Territorial Governance 2. Trademark 3. Other C. Treatises by the Time of Missouri v. Holland III. Implications Conclusion Introduction

For a long time, it was settled law that Congress could pass legislation that would otherwise be beyond its enumerated powers in order to implement treaties. The Supreme Court in Missouri v. Holland held this in 1920, when Justice Holmes wrote that if "the treaty is valid, there can be no dispute about the validity of [the statute implementing it] as a necessary and proper means to execute the powers of the Government." (1) As the Supreme Court interpreted the reach of Congress's enumerated powers more broadly during the New Deal Era, the importance of Missouri v. Holland's holding dwindled but remained unquestioned as a doctrine of constitutional law.

This is no longer the case. Following the federalist resurgence in other areas of constitutional law, Missouri v. Holland's holding is being reexamined. Professor Nicholas Rosenkranz initiated this reconsideration, arguing in an important article that Missouri v. Holland should be overruled. (2) In his view, the text of the Necessary and Proper Clause only permits Congress to pass legislation necessary and proper for the formation of treaties, and not for their implementation. The Supreme Court considered this issue last term in Bond u. United States. (3) Although the majority of the Court disposed of the case on statutory grounds, two justices embraced Professor Rosenkranz's approach, (4) and the issue may well return in the future.

The question of Congress's power to implement treaties under the Necessary and Proper Clause thus joins two other important treaty power issues as the subject of constitutional controversy. One issue is the extent to which treaty provisions are self-executing or non-self-executing. Scholars have fiercely debated this issue; it has shaped practice by the political branches; and it is the subject of a recent Supreme Court decision. (5) The other issue is the extent to which treaties can address issues not otherwise within the constitutional reach of the federal government. This issue received some attention in Bond, although it was not properly before the Court, (6) and it has also received substantial consideration in both scholarship and in the practice of the political branches. (7) Both issues are closely entangled with Congress's power to pass legislation otherwise outside its reach in order to implement treaties. Indeed, both issues are practical prerequisites for the exercise of this power, for there would be little need for this power if all treaties were self-executing or if they all dealt only with subjects otherwise within the purview of the federal government.

Yet there is a curious difference in how these constitutional questions are approached. So far, the debate about Congress's power to implement treaties has focused on textual and structural arguments. Justice Holmes's holding in Missouri v. Holland was a textualist one. The challenges raised to this holding by Professor Rosenkranz and the concurring justices in Bond have similarly relied mostly on textualism, but with additional reference to structural principles. (8) By contrast, the debates on self-execution and on the scope of the treaty power include substantial consideration of other principles of constitutional interpretation, most notably the historical practice of the political branches and precedents based upon this practice.

The absence of historical practice from the debate over Congress's power to implement treaties is problematic for at least two reasons. First, historical practice is a well-recognized and important principle of constitutional interpretation. As Justice Frankfurter famously wrote, "It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them." (9) A debate over Congress's power to implement treaties that does not consider historical practice will be uninformed and inconsistent with deep-rooted constitutional norms. Second, the need to consider historical practice with regard to Congress's power to implement treaties is especially pressing because this practice has proved so important to the prerequisite issues of self-execution and the scope of the treaty power. Given that the need for Congress to implement treaties in the first place is largely grounded in historical practice, it would be anomalous to overlook this important interpretive tool.

This Article considers what historical practice offers to the question of Congress's constitutional power to implement treaties through the Necessary and Proper Clause, which I refer to as "Congress's treaty-implementing power." I examine Congress's treaty-implementing power both when it overlaps with other enumerated powers of Congress and when it is the sole constitutional basis for legislation. I focus on the practice of Congress during the time between the Founding Era and Missouri u. Holland, as this is the period when one might expect any relevant controversies to have emerged.

Significantly, during this period there was no serious controversy about the existence of Congress's treaty-implementing power. Instead, this period shows a powerful consensus that the Necessary and Proper Clause authorized Congress to implement treaties, although there were differences of opinion about what legislation was in fact necessary and proper for treaty implementation. Intriguingly, this consensus was based on conflicting motivations related to questions of self-execution and of the scope of the treaty power. Both opponents and supporters of a strong treaty power embraced Congress's treaty-implementing power because they saw it as advancing their agendas in relation to the other issues. (10)

Those who were wary of a strong treaty power embraced Congress's treaty-implementing power because they saw it as an argument against treaty self-execution. Starting with the debate in the House of Representatives over the Jay Treaty in 1796, Congressmen concerned about self-execution cited the Necessary and Proper Clause as a reason to understand treaty provisions to be non-self-executing as a matter of constitutional law, at least when these provisions dealt with subjects within Congress's Article I powers. For them, the Necessary and Proper Clause signaled that Congress was intended to have a role in treaty implementation and thus served, in the words of one Representative, as a "shield" against the power of the President and the Senate to create domestic law obligations through treaties. (11) This view recurred throughout the nineteenth century and likely contributed to the growing practice of understanding treaties as non-self-executing.

Those who favored a strong treaty power also embraced Congress's treaty-implementing power, but they did so because it offered a justification for legislation that otherwise lay outside Congress's power. They...