The Boundless Treaty Power Within a Bounded Constitution

Notre Dame Law Review Volume 90 | Issue 4 Article 3 5-2015 The Boundless Treaty Power Within a Bounded Constitution Saikrishna Bangalore Prakash University of Virginia School of Law Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, and the International Law Commons Recommended Citation Saikrishna B. Prakash, The Boundless Treaty Power Within a Bounded Constitution, 90 Notre Dame L. Rev. 1499 (2014). Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss4/3 This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . \\jciprod01\productn\N\NDL\90-4\NDL403.txt unknown Seq: 1 14-MAY-15 14:37 THE BOUNDLESS TREATY POWER WITHIN A BOUNDED CONSTITUTION Saikrishna Bangalore Prakash* INTRODUCTION The Constitution grants the President the power to make treaties by and with the advice and consent of the Senate. One persistent matter of debate is whether there are subject matter limits to the President’s power to make treaties. In particular, in making an international agreement with a foreign nation, are there certain topics that are off limits?1 For instance may the President make a treaty about the details of family law, a subject often thought beyond the authority of the federal government?2 Or may the President make a treaty that obliges the United States to respect certain human rights, say a right to be free of corporal punishment? While many nuanced © 2015 Saikrishna Bangalore Prakash. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Thanks to Ryan Baasch and Maria Slater for comments and research assistance. Thanks to the participants at the Notre Dame Law Review’s symposium on Bond v. United States. Thanks to John Harrison for several helpful conversations. 1 There are, of course, other enduring questions about the treaty power. Treaties are always, first and foremost, international agreements. Under the Constitution, American treaties can have a second aspect, namely serving as a vehicle for the creation of domestic law. Prior to the Constitution and after its creation, there were extensive and fascinating discussions about whether treaties could make domestic law on the subjects granted to Congress by Article I. For instance, could a commercial treaty do no more than make an international agreement, with Congress actually having to change domestic commerce statutes to satisfy the new international obligation? This Article will not discuss this question. A second vital issue is whether there are limits to Congress’s power to pass statutes meant to enforce treaties. For instance, as a means of implementing a treaty related to chemical weapons, can Congress impose a nationwide ban on the use of chemicals used as weapons? This was one of the questions presented in Bond v. United States during the Supreme Court’s October 2013 Term. Following the Court’s example, I will duck this question. 2 Because Congress is not limited to the enumerated powers in the territories and the District of Columbia, Congress has no subject matter limits in those jurisdictions. When discussing the scope of the treaty power, I will be discussing whether treaties can make international agreements about what the governments and the peoples of the United States must (or must not) do in the fifty states. 1499 \\jciprod01\productn\N\NDL\90-4\NDL403.txt 1500 unknown Seq: 2 notre dame law review 14-MAY-15 14:37 [vol. 90:4 answers are possible, in the main, there are two primary answers: “no” and “yes.”3 Those who respond “no” to such questions suppose that the federal power to make treaties is not constrained by any subject matter limits. Their answer likely turns (in part) on their inability to detect subject matter constraints either in the Treaty Clause or elsewhere in the Constitution. Hence they conclude that the President, with the Senate’s consent, can make treaties on any subject: commerce, tax, military alliances, the rights of aliens, territorial cessions, migratory birds, human rights, children’s rights, and even animal rights. If the Republic of Panama sought a treaty with the United States relating to neighborhood watches, the President could make such a treaty, provided the Senate was unwise enough to consent with the requisite supermajority. Those who answer “yes”—those who suppose that there are subject matter limits on the treaty power—likely trade upon a sense that there must be implied limits on what the President may cram into a treaty. The federal government is a government of exhaustively enumerated and (therefore) limited powers. After carefully expressing what the Congress may do in Article I, Section 8 and what the President may do in the rest of Article II, how can it be that the Treaty Clause surreptitiously conveys broad power to reach any and all subjects? Such thinking leads some to conclude that the Constitution imposes subject matter limits that are left unsaid. I count myself in the first camp, among those who suppose that the Constitution contains no subject matter limits on the treaty power. More precisely, I believe that the original Constitution granted the President the power to make international agreements, with no particular constraints on the subjects they might touch. I reach this conclusion with a great deal of reluctance not because the case for this proposition is weak but because, as a matter of policy, I favor subject matter limits on the treaty power as a means of ensuring exclusive state authority over certain matters. Nonetheless, I have become convinced that the Constitution does not gratify my preferences. The treaty power is boundless in the sense that treaties of the United States can concern any subject, no matter how fanciful or seemingly absurd the matter might seem. Yet the treaty power is not completely without bounds. There likely are constraints on federal power that apply regardless of the sort of power (legislative, executive, judicial) being exercised. Such constraints would likewise apply to the treaty power as well. 3 I have greatly benefitted from the numerous works on this subject. Among the articles I have profited from are: Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390 (1998) [hereinafter Bradley, The Treaty Power and American Federalism]; Curtis A. Bradley, The Treaty Power and American Federalism, Part II, 99 MICH. L. REV. 98 (2000); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075 (...truncated)