Putting Missouri v. Holland on the map.

• Author: Swaine, Edward T.
• Position: Symposium

1. INTRODUCTION

   While I can think of no fitter setting for a symposium on this important topic, it must be admitted that geographically speaking, Missouri v. Holland disappoints. One thrills to the prospect of a divisive dispute between the State of Missouri and a province of the Netherlands--perhaps a sub-national compact on flood control gone sour? It quickly becomes apparent, though, that "Holland" is merely a lower-level federal official. And Missouri's particulars play a limited role in the case, as suggested by the fact that Kansas came to its side in the Supreme Court proceedings. (1) Those who are not students of American history, (2) or at least sports fans, (3) may not appreciate the rarity and generosity of Kansas' gesture.

   Yet Missourians were, of course, front and center in the case. Ray Holland, the federal game warden, roamed Missouri and several neighboring states in pursuit of lawbreakers. Frank McAllister, Missouri's Attorney General, was an inveterate duck hunter and committed opponent of the reenacted federal ban on spring shooting who appears to have been on bad terms with Holland. Holland, hearing rumors that McAllister was encouraging others to break the law, apprehended the Attorney General and four friends while they were hunting near Nevada, Missouri; McAllister, found with a bag of seventy-six ducks, reportedly compounded his problems by giving a false name. He was prosecuted and fined, and in retaliation sought to enjoin the federal law on constitutional grounds. The proceedings ultimately generated Missouri v. Holland and victory for Holland--probably a particularly bitter pill for McAllister to swallow, given that he himself had argued the case on behalf of Missouri. (4)

   More broadly, Missouri and its citizens were fixed and leading opponents to the Migratory Bird Treaty and its implementing legislation. In part this was due to the migratory patterns of ducks, which skipped the Midwest when traveling south in the fall; this meant that federal limits on spring shooting would deprive Missourians of what they considered their fair share of ducks (or, perhaps more accurately, impair the ability of Missourian duck clubs to afford members like McAllister exclusive access to the ponds and small lakes that were most attractive during the spring).5 Opposition to federal intervention was driven by Missouri's Senator James A. Reed, who maintained his own feud with the leading conservationist advocate, William Hornaday. (6) Reed singled out Hornaday as the man to blame for the entire initiative, and either "insane" or a "common slanderer and a common scoundrel." (7) Not to be outdone, when treaty ratification seemed assured Hornaday crowed, "Praise God, from whom all blessings flow; and now the spring-shooters of Missouri can go to hell!" (8)

   It's hard to say where Missouri's spring shooters eventually wound up, but it was ingenious for Hornaday to speculate--however baselessly--about their migratory pattern. Keeping things figurative, we might try to understand Missouri v. Holland's migration as well--focusing on just one aspect of the decision, its suggestion that congressional power may be enhanced by a treaty. I want to first put Justice Holmes' opinion on the map by identifying the claims he was making and the claims that might have been made on the facts of the case. (9) That exercise, I think, best informs attempts to reckon where Missouri v. Holland came from, and where it went afterwards. Doing so, I conclude, also undermines contemporary criticisms and defenses of the Court's decision.

2. MISSOURI V. HOLLAND IN CONTEXT

   Given the symposium's focus, I will provide only what background is necessary to understand the relevant parts of Missouri v. Holland. (10) The basics are easily stated. After nearly ten years of attempts, Congress adopted legislation--the Migratory Bird Act of 1913, also known as the Weeks-McLean Act--that extended federal protection to migratory birds and attempted to regulate their hunting. The law responded to broad-based concern that unconstrained shooting risked species extinction (the passenger pigeon being fresh in mind) and, consequently, the loss of millions of dollars in crops to the insects otherwise consumed by insectivorous birds. State regulation existed but was considered unequal to the task. (11)

   Even advocates of the legislation, however, were uncertain about its constitutionality, and the Department of Agriculture tried to avoid enforcement for provoking an adverse result. (12) Eventually, their concerns were confirmed when two federal courts--one pitching in from Kansas--demurred. (13) After considerable intrigue and some misadventure, (14) the United States and Great Britain (on behalf of Canada) negotiated a treaty. (15) On that premise, Congress enacted the Migratory Bird Treaty Act of 1918, which was signed by President Wilson, (16) and the Secretary of Agriculture promulgated regulations. (17) Enforcement and a challenge eventually followed, and the case rose to the Supreme Court and Justice Holmes.

   A recent article by Professor Rosenkranz notes that Missouri v. Holland involved the holy trinity of issues raised by the treaty power: first, whether (notwithstanding the Supremacy Clause) a treaty may be non-self-executing, in the sense that Congress must pass implementing legislation to give it domestic effect; second, whether a treaty might address subjects beyond reach of Congress' enumerated powers; and third, whether a treaty that was non-self-executing, and reached beyond enumerated authority, could enable Congress to pass such implementing legislation. (18) Justice Holmes concentrated on the second question, and said little about the first or third. With respect to non-self-execution, his recitation of the facts simply stated that the treaty parties agreed they "would take or propose to their lawmaking bodies the necessary measures for carrying the treaty out" (19)--and otherwise assumed that the legislation performed a relevant function. Foster v. Neilson had previously resolved that some treaties required legislative execution before the courts could apply them, (20) and everyone in Missouri v. Holland simply assumed that the Migratory Bird Treaty was one of those treaties. (21) With respect to the issue of congressional implementation, which is our focus here, Justice Holmes stated simply that "[i]f the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." (22) As a predictive matter, he was quite wrong; there could be, and has been, dispute about the validity of such a statute. It seems disingenuous, in fact, for him to have suggested otherwise: Given that the "different way" in which he thought limits to the treaty power should be ascertained seemed to pose few if any obstacles to treaty-making, (23) the corresponding unshackling of Congress' implementation power--and its controversial consequences for any notion of a limited national government--must have been apparent to Holmes.

   That said, Holmes may well have regarded the implementation issue as a settled one. The Court had earlier endorsed a broad view of Congress' power to implement treaties, (24) albeit without putting much meat on the bones, (25) and it was hardly an uncommon position among commentators. (26) The briefing in Missouri v. Holland did little to disabuse him of this idea. Missouri did not deny that, assuming arguendo a treaty could validly go beyond enumerated powers, Congress' legislative powers were increased apace; (27) this left unchallenged the district court's view that those legislative powers were simply "an incident of the legitimate treaty making power." (28) For its part, the brief for the United States duly invoked the Necessary and Proper Clause, (29) and added:

   Since ... the power to make treaties is conferred upon the President and the Senate, there is here a power expressly given to the Congress to make all laws which shall be necessary and proper for carrying into execution any treaty lawfully made by the President and ratified by the Senate. Such a treaty becomes a part of the supreme law of the land, and, being so, Congress has the power to enact legislation necessary to carry into effect its provisions. (30) Justice Holmes' opinion seemed to adopt the U.S. submission--for example, in alluding to the supremacy of the treaties over state law, seemingly irrespective of whether they were self-executing or not. (31) The result, in any event, was that while the Court examined whether treaties could go beyond Congress' enumerated powers, it said little about why legislative authority should continue apace.

3. HOLLAND AND TREATY IMPLEMENTATION

   Unsurprisingly, the resuscitation of federalism in the Rehnquist Court prompted reconsideration of Missouri v. Holland, including as to its domestic implications for congressional authority. (32) As just noted, the Court's opinion did relatively little to justify its holding on that score; though many responses to its critics might be imagined (and many have already been articulated), I would like to compensate for Justice Holmes' reticence by teasing more out of the decision's original context--its place on our constitutional map, as it were.

   1. Minding the Gap

      Professor Rosenkranz's recent takedown of what is regarded as Holland's holding--that the Necessary and Proper Clause affords the national government the authority to implement any treaty within its power (which is to say, virtually any treaty)--relies on evidence that the Court might well have considered, rather than any more contemporary concerns. His principle objection is textual. The Necessary and Proper Clause provides that:

      The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the...