Congress' treaty-implementing power in historical practice.

• Author: Galbraith, Jean
• Position: 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 2. The Necessary and Proper Clause and Treaty Non-Self-Execution in the Nineteenth Century through Conclusion, with footnotes, p. 87-113

2. The Necessary and Proper Clause and Treaty Non-Self-Execution in the Nineteenth Century

   Over the course of the nineteenth century, the political branches shifted increasingly towards congressional involvement in the implementation of treaties. Two themes relevant to the Necessary and Proper Clause's role in treaty implementation that had emerged in the Jay Treaty debates continued to mark the self-execution debate. First, as in the Jay Treaty debate, opponents of self-execution invoked the Necessary and Proper Clause in arguing that commercial treaties should require congressional implementation, rather than be deemed self-executing. (98) This argument presumed that the Necessary and Proper Clause did in fact provide Congress with a treaty-implementing power--consistent with the later conclusions of Justices Harlan and Holmes and contrary to the position taken by Professor Rosenkranz and Justice Scalia." Second, as foreshadowed in the discussion of the Treaty of Utrecht during the Jay Treaty debate, the terms of treaties negotiated by the United States would sometimes expressly require congressional approval for these treaties to take effect--thus effectively giving Congress a role in the "making" of treaties.* 100 This demonstrates how the sharp line between treaty making and treaty implementation drawn by Professor Rosenkranz and Justice Scalia is often blurred in practice.

   Here, I describe these trends by focusing on two important instances in their application: first, the debate surrounding an 1815 commercial treaty with Great Britain; and second, the debate surrounding an 1875 commercial treaty with Hawaii and its later extension in 1887.

   1. The 1815 Commercial Treaty with Great Britain

      After the conclusion of the War of 1812, the United States entered into a commercial treaty with Great Britain that further reduced trade barriers between the two countries. Reprising arguments from the Jay Treaty, the House of Representatives debated a bill that they claimed would implement aspects of the treaty, such as its provisions reducing certain duties on imports. (101) Some members argued that there was no need for such a bill; after ratification a treaty "is made--it is complete; and no act of the House of Representatives can add anything to its validity." (102) In response, a few members who felt that congressional implementation was needed invoked the Necessary and Proper Clause as supporting their claim, just as had been done in the Jay Treaty debate. For example, Representative King of Massachusetts argued that the Necessary and Proper Clause "strengthened" the claim that congressional implementation was needed because this clause provided "for carrying into execution the treaty-making power." (103) The position of King and other members of the House who favored non-self-execution carried the day in the House and led to the passage of a bill implementing the commercial provisions of the treaty.

      The House bill in turn led to a debate in the Senate over whether congressional legislation was necessary to implement the treaty. Some senators agreed with the House majority. Senator Roberts of Pennsylvania claimed that legislative sanction was needed for treaties and invoked the Necessary and Proper Clause as supporting the conclusion that "all power to make laws, for carrying into execution every power vested in the Government, or any department thereof, (most obviously the treaty-making power is here included), is by the Constitution vested in Congress." (104) A majority of the

      Senate nonetheless resisted the House bill, considering that the treaty was self-executing, although it would be helpful to have a declaratory statute specifying which prior laws were repealed in light of the treaty. (103) The matter went to a conference. (106) In the end, the sides agreed that there would be some instances where treaties were self-executing and others where they required legislation for execution, although they did not resolve whether this was one of those instances. (107) Instead, they passed a bill which the House members of the conference considered amounted to implementing legislation and the Senate members viewed merely as declaratory. (108) Although this resolution was inconclusive, it was still a step forward for supporters of non-self-execution relative to 1796, when the Jay Treaty's commercial provisions had been treated as the law of the land without even any arguable implementing legislation. (109)

   2. The 1875 Commercial Treaty with Hawaii and Its Extension

      An 1875 commercial treaty with Hawaii towards the end of the nineteenth century exemplifies the growing role of the House in treaty implementation. This treaty expressly provided that it would not take effect "until a law to carry it into operation shall have been passed by the Congress of the United States of America." (110) In other words, this treaty brought Congress expressly into the treaty-making process by conditioning its entry into force on congressional implementation--just as the Treaty of Utrecht had been conditioned on parliamentary approval. When, in 1887, the Senate advised and consented to a new treaty with Hawaii that extended the terms of this prior treaty without including a provision requiring congressional implementation, members of the House signaled their severe displeasure. (111) They were led by John Randolph Tucker, a member of a prominent Virginia family whose constitutional interpretations tended to favor states' rights over nationalism. (112)

      In March 1887, Tucker produced a House Report that contained a narrow constitutional understanding of the treaty power. This report took a restrictive view of the scope of the Treaty Clause (claiming that the Tenth Amendment limited its reach) and of treaty self-execution (claiming that treaties that dealt with matters within Congress's Article I powers required congressional implementation). (113)

      Yet Tucker had no doubt that the Necessary and Proper Clause authorized congressional legislation implementing treaties. (114) Indeed, like his predecessors in the Jay Treaty debate and in the 1815 commercial treaty mentioned above, he went even further and concluded that the Necessary and Proper Clause strongly supported the case against self-execution:

      This clause is most pertinent to this discussion.... This clause declares that "Congress shall have power to pass all laws necessary and proper for carrying into execution all powers vested by this Constitution in the Government of the United States or in any Department or officer thereof." This language makes it clear that while the executory agreement is in the treaty-making power, the power of execution is vested in Congress.... The treaty is thus made to depend for its consummate obligation on the action of Congress, not of constraint, but of independent will; and therefore no such treaty can bind the country's faith until the power which makes the executory stipulations of a treaty obtains concurrence from the power which alone can carry the agreement into execution. (115) Despite Tucker's objections, the extension came into effect without further implementing legislation. (116) His views, however, would be recognized for decades afterwards as "the best representative of the school which would enforce limitations upon [the treaty-making] power." (117)

      As these examples reveal, members of Congress who were wary of the treaty power used the Necessary and Proper Clause to claim that treaties require congressional implementation in order to become the law of the land. These debates generally took place when overlap occurred between treaties and Congress's Article I powers, especially its commercial powers. Accordingly, these members of Congress relied on the Necessary and Proper Clause not as the basis for the exercise of powers that Congress did not already possess, but rather as a shield against treaty self-execution when Congress already had power over the subject matter. But the textual interpretation made here cannot be readily limited to the context of concurrent powers. Opponents of self-execution clearly interpreted the Necessary and Proper Clause to apply to legislation passed to implement treaties, as opposed to legislation passed simply to facilitate the negotiation of treaties. As a matter of logic, this textual interpretation should also apply to the implementation of treaties when Congress has no basis for legislating other than its treaty-implementing power. There is no textual basis for interpreting the Necessary and Proper Clause to authorize treaty implementation only for treaties dealing with subjects otherwise within Congress's powers. This is especially true as the Necessary and Proper Clause itself makes expressly clear that it applies not only to the "foregoing" Article I powers of Congress, but also to "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (118)

      These examples are also significant because they relate to the broader historical practice of having some treaties be non-self-executing, which continues to this day. Efforts like those of the congressmen discussed above to make non-self-execution doctrinally required has for the most part proved unsuccessful: non-self-execution is now deemed to be constitutionally required only for a few particular subjects at most. (119) Yet non-self-execution is not uncommon in the practice of the political branches. The Senate today sometimes signals an understanding that particular treaties are non-self-executing; (120) and major trade agreements are now done in ways that bypass the Treaty Clause process entirely. (121) Indeed, commentators who defend the modern use of resolutions of non-self-execution in human rights treaties have cited requirements of congressional approval, like the one written into the 1875 commercial treaty with Hawaii, as constitutional precursors to these...