Congress's Limited Power to Enforce Treaties

Notre Dame Law Review Volume 90 | Issue 4 Article 5 5-2015 Congress's Limited Power to Enforce Treaties Michael D. Ramsey University of San Diego Law School 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 Michael D. Ramsey, Congress's Limited Power to Enforce Treaties, 90 Notre Dame L. Rev. 1539 (2014). Available at: http://scholarship.law.nd.edu/ndlr/vol90/iss4/5 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\NDL405.txt unknown Seq: 1 14-MAY-15 14:38 CONGRESS’S LIMITED POWER TO ENFORCE TREATIES Michael D. Ramsey* This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States.1 It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Congress’s power to enact laws necessary and proper to carry into execution the treatymaking power can be read to include the power to enforce treaties because treatymaking and treaty enforcement are inevitably intertwined. As the Framers understood from experience, a nation with a reputation for unreliable treaty enforcement would be impaired in its ability to make future treaties, as potential partners would regard it as untrustworthy. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. But this structural point is overstated, both because treatymaking itself is constrained by the need for supermajority Senate consent and because federal power can be exercised through self-executing treaties regardless of limits on Congress. Indeed, structural considerations cut at least as strongly the other way, for it seems unlikely after the experiences of the Articles of Confederation that the Framers would have accepted a category of treaties whose enforcement could not be assured at the national level. Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. If Congress alone can decide what a treaty means and what its enforcement requires, Congress may use the treaty to claim powers not © 2015 Michael D. Ramsey. 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. * Hugh and Hazel Darling Foundation Professor of Law and Faculty Director of International and Comparative Law Programs, University of San Diego Law School. Thanks to William Dodge, Duncan Hollis, David Moore, Saikrishna Prakash, Michael Rappaport, and David Sloss for helpful comments and discussions, and to Joseph Mellano for research assistance. 1 134 S. Ct. 2077, 2094–102 (2014) (Scalia, J., concurring in the judgment). 1539 \\jciprod01\productn\N\NDL\90-4\NDL405.txt 1540 unknown Seq: 2 notre dame law review 14-MAY-15 14:38 [vol. 90:4 contemplated by the treatymakers. Congress could thus invoke the treaty while circumventing the supermajority constraint on treatymaking. Third, therefore, courts should not defer fully to Congress in this matter; instead, they should assure that Congress’s actions do not exceed what is justified by the treaty. Although Congress has power to pass laws necessary and proper to preserve the United States’ reputation for treaty compliance, Congress must use this power in ways that do not unduly infringe federalism. In particular, this Article suggests two types of judicial limitations. Courts can make an independent assessment of the meaning of the treaty, including employing a presumption that treaties do not affect purely domestic matters. Courts can also review the necessity and propriety of Congress’s enforcement legislation, prominently including in this assessment whether enforcement of the treaty is appropriately done at the federal rather than the state level. As a result, Congress’s power to enforce treaties, while broad, need not be unlimited. As an illustration, application of this approach in Bond v. United States would find the federal legislation (as applied to Bond) beyond Congress’s power, both because the Chemical Weapons Convention did not reach Bond’s conduct and because even if it did, state regulation was adequate to assure U.S. compliance with the Convention. As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited so that it does not pose an undue threat to federalism. I. CONGRESS’S POWER TO ENFORCE TREATIES Concurring in the judgment in Bond v. United States, Justice Scalia (joined by Justice Thomas) argued that a federal statute implementing a treaty, if not otherwise within the powers of Congress, is unconstitutional: Since the Act is clear, the real question this case presents is whether the Act is constitutional as applied to petitioner. An unreasoned and citationless sentence from our opinion in Missouri v. Holland purported to furnish the answer: “If the treaty is valid”—and no one argues that the Convention is not—“there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.” Petitioner and her amici press us to consider whether there is anything to this ipse dixit. The Constitution’s text and structure show that there is not.2 As Scalia’s assessment makes clear, the core question is whether Congress’s “necessary and proper” power extends to statutes that enforce treaties. The Court’s assumption in Missouri v. Holland (and Scalia is right that it is just an assumption) was that (a) the treaty power is a power of the federal government; (b) Congress has the power to “carry into execution” the powers of the federal government; and (c) legislation that enforces a treaty provi2 Id. at 2098 (footnote omitted) (citations omitted) (quoting Missouri v. Holland, 252 U.S. 416, 432 (1920)). \\jciprod01\productn\N\NDL\90-4\NDL405.txt 2015] unknown Seq: 3 14-MAY-15 congress’s limited power to enforce treaties 14:38 1541 sion carries into execution the treaty power.3 Scalia makes a twofold counterargument, based on text and structure. In this Part, I argue that he is unpersuasive on both counts. A. Text Following Nicholas Quinn Rosenkranz’s pathbreaking article,4 Scalia argues that the Constitution’s text—the (...truncated)