Missouri v. Holland's second holding.

Author:Vazquez, Carlos Manuel

    The Supreme Court in Missouri v. Holland, speaking through Justice Holmes, famously held that Congress has the power to pass a law to implement a treaty even if the law would not fall within Congress' legislative power in the absence of the treaty. (1) Essential to this holding were two distinct propositions. The first proposition is that the treaty-makers have the constitutional power to make treaties on matters falling outside Congress' enumerated powers. The second is that, if the treaty-makers make such a treaty and the treaty is not self-executing, the Necessary and Proper Clause gives Congress the power to implement such a treaty through a statute even if, in the absence of the treaty, the statute would be beyond Congress's legislative power. The Court in Missouri v. Holland focused on the first proposition. It devoted only one sentence to the second proposition: "If 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." (2)

    As David Golove has shown, controversy concerning the issue addressed in Missouri v. Holland has recurred throughout our history, both before and after that decision. (3) Each time, however, the controversy has revolved around the power of the treaty-makers to make treaties on matters outside Congress' enumerated powers. The proposition that Congress has the power to implement any obligations undertaken under valid treaties has not been seriously questioned--until recently. In recent articles, critics of Missouri v. Holland have suggested that it is the second, heretofore unquestioned aspect of Missouri v. Holland that should be rejected rather than the first. Professor Curtis Bradley would construe the Constitution to "allow the treaty-makers the ability to conclude treaties on any subject but ... limit their ability to create supreme federal law to the scope of Congress's power to do so." (4) In other words, the treaty-makers would have the power to conclude treaties on matters beyond Congress' legislative powers, but such treaties could not be self-executing, and Congress would lack the power to execute them. More recently, Professor Nicholas Q. Rosenkranz has argued, too, that the treaty-makers have the power to conclude treaties on matters beyond Congress' legislative powers and that Congress lacks the power to execute such treaties. (5) Rosenkranz's proposed constitutional interpretation differs from Bradley's in that he would recognize the treaty-makers' power to make such treaties self-executing.

    It is easy to see why no one has ever regarded it as plausible to read the Constitution to authorize the making of treaties that require implementation but deny Congress the power to implement such treaties. Such a regime would appear to contradict one of the Founders' key convictions--that the federal government must have the power to assure compliance with its international commitments. Prominent among the reasons the Founders decided to abandon the Articles of Confederation and write a new Constitution were the failure of the States to comply with treaties during the period of the Articles of Confederation and the absence of any mechanism in the central government for assuring compliance with such treaties. The Founders feared the foreign relations problems that could be caused by treaty violations and, more affirmatively, they wanted to reap the economic benefits of a reputation for treaty compliance. (6) Although I believe that they gave the President and Senate the power to make treaties on matters beyond Article I, (7) it seems clear that the Founders would not have granted the federal government the power to conclude such treaties without giving the federal government the power to implement them. Better to have no treaty at all than a treaty likely to be violated. (8) Leaving the implementation of treaty commitments to the States would have been anathema.

    Although their particular proposals are untenable, given the Founders' design, Professors Bradley and Rosenkranz are on the right track insofar as they identify the second of Justice Holmes' two propositions as the potentially problematic one from a federalism perspective. The scope of the actual federalism problem attributable to the holding of Missouri v. Holland, however, is far more limited than Professors Bradley and Rosenkranz suggest. Their concern that the Treaty Power will be misused to circumvent the limitations the Constitution imposes on Congress's legislative power is overstated given that such a ruse could succeed only if two-thirds of the Senate went along with it. Article II's supermajority requirement is a strong structural guarantee that treaties will be concluded only if they would truly advance the foreign relations goals of the nation.

    But one of the federalism concerns obliquely raised by Bradley and Rosenkranz is potentially legitimate. Both note that a federalism problem arises when the treaty-makers conclude aspirational treaty provisions. (9) Though neither develops the argument, a concern along the following lines appears well-founded: when the treaty-makers, in complete good faith, conclude a treaty containing aspirational provisions, the treaty can be expected to sail through the Senate because it does not appear to require much of anything from the United States. Under Missouri v. Holland, such a treaty could support legislation designed to advance its purposes, even if such legislation would otherwise fall outside the legislative power. Indeed, the vaguer the aspirations, the broader the potential legislative power it supports. This federalism problem is not hypothetical; there already are numerous treaties in force containing aspirational provisions which, under a literal reading of Missouri v. Holland, could support legislation on any conceivable aspect of human rights.

    This legitimate federalism problem, however, does not warrant a complete rethinking of Treaty Power doctrine. It just requires some tinkering around Missouri v. Holland's edges. The solution I propose is far narrower than those proposed by Bradley and Rosenkranz, and unlike their proposed solutions, it is consistent with the Founder's design. I argue that the power to implement treaties under the Necessary and Proper clause is the power to require compliance with treaty obligations. Because aspirational treaty provisions do not impose obligations in any meaningful sense of the term, the clause does not give Congress the power to implement such provisions. If such provisions concern matters otherwise beyond Congress' legislative powers, the Constitution leaves their implementation to the States. This approach is consistent with the Founders' design because the Constitution reflects the Founders' fear of treaty violations by States, and only obligatory provisions can be violated.

    Part II of this article considers and rejects Professor Bradley's approach. Part III considers and rejects Professor Rosenkranz's approach. Part IV sets forth the true federalism problem posed by the holding of Missouri v. Holland and advances my more tailored solution to this problem.


    Professor Bradley devotes much of his article to critiquing what he calls the "nationalist" position on the Treaty Power reflected in Missouri v. Holland. The nationalist position, as he describes it, holds that the Power of the President and Senate to make treaties is subject neither to "subject-matter" limitations nor "states-rights" limitations, and that the power to make congressional-executive agreements and even sole executive agreements is also free of these constraints. (10) By "subject-matter" limitations, Bradley means such limitations as the requirement that treaties involve matters of "international" concern or concern matters that are appropriate for international negotiation. (11) By "states-rights" limitations, Bradley means the limitation of the Treaty Power to matters falling within Congress' legislative powers under Article I, section 8, and subsequent amendments, (12) as well as the prohibition against commandeering articulated in cases such as New York v. United States (13) and Printz v. United States, (14) and state sovereign immunity doctrines reflected in the Eleventh Amendment and decisions such as Alden v. Maine. (15) Bradley argues that the Founders envisioned that the Treaty Power would be constrained by either subject-matter limitations or state-rights limitations and that the nationalist view clashes with history because it would reject both types of limitations, leaving the Treaty Power entirely unconstrained. (16)

    Professor Bradley's approach is not a narrowly originalist one, however. (17) In the end, he advocates the approach that he thinks is best suited to current realities. He rejects subject-matter limitations as infeasible in today's world because, in light of globalization, the line between what is international and what is national is impossible to maintain. (18) He also accepts that the treaty-makers should be permitted to conclude treaties even if they address matters falling beyond Congress' legislative powers or contemplate action that, if taken by the Federal Government, would run afoul of other Tenth and Eleventh Amendment limitations. (19) He insists, however, that Congress lacks the power to implement such treaties. (20) To the extent such treaties require legislation that would be beyond Congress' legislative power under Article I, the implementing legislation would have to be enacted by the States.

    In many respects, Professor Bradley's critique is well founded. I agree that the case for exempting the Treaty Power from the anti-commandeering doctrine and state sovereign immunity doctrines is not strong. (21) Also weak is the claim that the holding of Missouri v. Holland extends to congressional-executive agreements and sole executive agreements...

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