Resurrecting Missouri v. Holland.

• Author: Spiro, Peter J.
• Position: Symposium

1. INTRODUCTION

   For a decision that has never been put to work, Missouri v. Holland (1) has generated a good deal of academic discussion. At one level, that shouldn't be surprising. The case supplies a clean judicial pronouncement on a question of paramount constitutional importance. At another level, however, until recently there hasn't been much to talk about. Missouri v. Holland declared a broad vision of the Treaty Power and of the national government's authority to constrain the states in furtherance of international obligations. But the federal government failed to assimilate that version of the Treaty Power. Indeed, it is only recently that the exercise of powers available under Holland has become a realistic possibility.

   This brief essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably, the decision is no longer good law if it ever was.

   But Holland may yet live. The key moving part here is the transformed global context. On the one hand, globalization disaggregates nation-states, facilitating the global interactivity of constituent subnational jurisdictions. (2) This creates new spaces for the states as international actors, including as parties to international agreements. These new international capacities may lessen the need for Holland-like powers in the national government, as the states become more amenable to international discipline. To the extent that international law implicates areas of exclusive subnational authority, the architecture of global society now includes suitable channels of interaction. On the other hand, the transaction costs of managing treaty relationships with multiple subnational entities argues for the maintenance of intermediary power in national governments. The discipline of subnational authorities may remain insufficient to address global imperatives. Some global issues can't wait for the perfection of the legal personality of subnational actors.

   In other words, the world may need Missouri v. Holland. If Holland is to be resurrected, it probably won't be out of indigenous American concern. More likely, other actors will press the use of Holland's powers on the United States, in the way of demands lodged with the national government to bring the states into line with international undertakings. Although the national government has finessed recent situations in which a broad interpretation of the Treaty Power might have been required, it has yet to be put to the test. But it is not hard to conjure up scenarios in which the balance would tip in favor of using a treaty to trump state authority.

   So time may finally be catching up to Missouri v. Holland. Globalization is generating more robust international regimes. Whether or not globalization diminishes aggregate state power, (3) it logically enlists states as agents of enforcement. Holland supplies the constitutional tool for perfecting that power in the American context. We may yet witness its use.

2. HOLLAND'S STILLBIRTH

   For all its dramatic elegance and structural logic, Missouri v. Holland hasn't made much of a mark beyond the academy. Its validation of an expansive Treaty Power appears never to have been internalized by the political branches, who failed to take the Supreme Court up on its offer. This failure was not simply prudential, in the sense that the political branches consciously held the power in reserve. They consistently acted, now for something approaching a century, as if they didn't have the authorities ascribed to them by the Court. If history be our constitutional guide, (4) that practice has established a constitutional counter-norm, under which the Treaty Power adds nothing to other authorities of the national government.

   The Bricker Amendment episode is crucial to this account of the Treaty Power. Several versions of the proposed constitutional amendment would have expressly confined the Treaty Power within the limits of other delegated authorities. (5) In other words, the proposals would have formally reversed Holland. Of course, the Bricker Amendment was defeated. The episode is thus consistent with an account under which Holland remains an accurate statement of constitutional norms, and that is how most contemporary commentators process the episode. (6)

   But this history also lends itself to an explanation less kind to Holland. The initiative was in the first place intended by way of "constitutional insurance," in Senator John W. Bricker's own conception of the campaign. (7) Bricker acted in the face of Holland's "dangerous potentialities" only, conceding that the "executive branch acts as though the Holland case had never been decided." (8) The decision had not been deployed to legitimize any treaty other than the migratory bird agreement upheld in Holland itself. (9)

   The Bricker Amendment was prompted not by Holland's use but by the postwar emergence of human rights conventions and the United Nations, which made those "potentialities" much more threatening to supporters of states' rights. The elastic terms of human rights regimes made Holland look like a loaded weapon, especially as the domestic civil rights movement started to gain traction. Even after the entrenchment of New Deal jurisprudence, important spheres of activity seemed safely beyond the authority of the federal government, notably as they related to questions of race. Segregationists and other states-righters wanted to protect against the Treaty Power as Trojan horse.

   And that they did, even if they failed in securing adoption of the proposed amendment formally reversing Holland. The proposal was high profile and hard fought. One version came within a single vote of Senate approval, with a 60-31 vote in its favor. By way of drawing support away from the effort, Eisenhower agreed not to pursue ratification of any of the human rights conventions. (10) At a time after which he could not have harbored much hope for the amendment's passage, Bricker lauded the Eisenhower Administration for "show[ing] great respect for the constitutional prerogatives of the States." (11) Eisenhower, for instance, had crafted a flight of friendship, commerce, and navigation treaties to allow for state regulation of alien property ownership, even though state law could have been trumped without a constitutional assist from the Treaty Power.

   Nor would members in the Bricker movement have had cause for bitterness in the subsequent practice. They may not have gotten the insurance they wanted against the exercise of an expansive Treaty Power, but in the end they didn't really need it (although of course they lost the war on other constitutional fronts, as states' rights limitations on federal power fell by the judicial wayside). For many years, presidents stayed true to Eisenhower's undertaking not to accede to human rights conventions. When the United States did finally sign on to select regimes (this as it more aggressively pressed human rights norms on other states), it did so only to the extent that participation would coincide with existing U.S. practice. Ratification packages of reservations, understandings, and declarations (RUDs) aimed to ensure that accession to multilateral conventions would not require changes in U.S. law. (12) In other words (as is now well understood),13 U.S. ratification of human rights conventions has been for the most part a hollow exercise.

   That has methodically been the case with respect to those components of human rights regimes bearing on traditional state-level authorities. The federalism concern...