This Essay will proceed in five parts. The president has the sole power to negotiate treaties. We accept the proposition that a fully informed eighteenth-century audience would have been startled to discover that the federal government had no power to cede territory, even as part of a peace settlement. (footnote omitted)). Planned Parenthood of Se. . Brief for the United States at 46, Bond v. United States, No. 11. 171. Both involve the application of a federal statute to a wholly local assault covered by state criminal law. Failing to judicially enforce the limits on federal government power, and the power held by individual branches, is tantamount to ignoring the sovereign will of the people who created government in the first place. 19. Article II, Section 2 provides that the President has the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.33 By housing this power in Article II, the Framers designated the treaty power as one of the Presidents executive powers as opposed to one of Congresss legislative powers. New York v. United States held that the federal government cannot commandeer state governments into passing or enforcing a federal regulatory program.126 New York rightly explained: [J]ust as a cup may be half empty or half full, it makes no difference whether one views the question at issue in these cases as one of ascertaining the limits of the power delegated to the Federal Government under the affirmative provisions of the Constitution or one of discerning the core of sovereignty retained by the States under the Tenth Amendment. !PLEASE HELP!!! !PLEASE HELP! 1, 57. Bond v. United States, which is currently pending before the U.S. Supreme Court, provides a concrete set of facts showing how pervasive the treaty power could be without meaningful constitutional restraints. 82. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights let alone alien to our entire constitutional history and tradition to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In the United States, the Executive Branch (President) will negotiate a treaty, and it must be consented to by the Senate with a 2/3 affirmative vote. !PLEASE HELP! See Lawson & Seidman, supra note 133, at 63. . HELP! !PLEASE HELP!!!! Thus, our fledgling nation had to project strength to the rest of the world while remaining disentangled from conflicts among other countries. 60. 2. 80. !PLEASE HELP!!! The Constitution creates a Federal Government of enumerated powers.83 Our Framers purposely designed it that way. For nearly a century, the touchstone of this analysis has been one line from Missouri v. Holland: If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, 8, as a necessary and proper means to execute the powers of the Government.143 So according to Justice Holmes, the Necessary and Proper Clause gives Congress authority to pass any legislation implementing a treaty. City of Boerne v. Flores, 521 U.S. 507 (1997). Carol Anne Bond lived near Philadelphia, and she sought revenge after finding out that her close friend, Myrlinda Haynes, was pregnant and that the father was Bonds husband.65 Bond harassed Haynes with telephone calls and letters, which resulted in a minor state criminal conviction.66 Bond then stole a particular chemical from her employer, a chemical manufacturer, and ordered another chemical over the internet.67 She placed these chemicals on Hayness mailbox, car door handle, and front doorknob.68 As a result, Haynes suffered a minor burn on her hand.69, Bond probably could have been charged with violations of state law, like assault,70 aggravated assault,71 or harassment.72 Instead, the federal government stepped in and charged Bond with violating the Chemical Weapons Convention Implementation Act, alleging that she used chemical weapons when she placed chemicals on Hayness mailbox, car door handle, and front doorknob.73, Bond argued that Congress lacked the constitutional authority to enact the Act, at least as applied to her conduct in the domestic dispute.74 The district court rejected her argument.75 Bond then pled guilty on the condition that she retained her right to appeal her constitutional argument.76 The district court sentenced her to six years imprisonment.77. Head Money Cases, 112 U.S. 580, 598 (1884). . Perhaps another one of Congresss enumerated powers such as the Commerce Clause might happen to give Congress that authority. 98. 3. [the] Power . Either way, we must determine whether any of the . I, 8, cl. But even putting aside this Tenth Amendment textual argument, there are significant structural arguments in favor of limiting the Presidents Treaty Clause power. See supra section III.B.1, pp. See id. Oversight and investigations. Treaty Power Law and Legal Definition. . I 1996) (repealed 1998). United States v. Bond, 681 F.3d 149, 16566 (3d Cir. Bond v. United States, 131 S. Ct. 2355, 2360 (2011). !PLEASE HELP! Louis Henkin, Foreign Affairs and the US Constitution 190 (2d ed. 39 (James Madison), supra note 34, at 242. . Part II briefly lays out the facts in Bond v. United States, which raises many difficult issues that will be discussed in the remainder of the Essay. The Role of Congress in Adopting International Treaties. 3 (John Jay), supra note 34, at 36. The Senate does not ratify treaties. But even before the Bill of Rights was created, the Constitution painstakingly enumerated the limited powers of the federal government on the basis that states would retain authority in a system of dual sovereignty. We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us. First it creates a national government consisting of a The 1998 Act adopted the Conventions definition of chemical weapon, which covers any toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter.62 And toxic chemical, in turn, includes any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.63 The statute does include an exemption for a toxic chemical intended for [a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.64 Nevertheless, the chemical weapons crime created by the 1998 Act was not tailored to prohibit only weapons of mass destruction, even though that was the express purpose of the Convention. The facts of Missouri v. Holland are striking and provide a roadmap for how the federal government could use treaties to aggrandize power otherwise reserved for the states: In 1913, Congress enacted a statute to regulate the hunting of migratory birds. 123. Ann. As early as 1836, the Court explained, Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.119 In 1872, the Court expanded on this point: [T]he framers of the Constitution intended that [the treaty power] should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.120, So by 1890, the Court noted that the treaty power is subject to those restraints which are found in [the Constitution] against the action of the government . v. U.S.), 2004 I.C.J. (During wartime, however, the President has the power to cede state territory by refusing to defend it (or by defending it and losing). Holden v. Joy, 84 U.S. (17 Wall.) In fact, the Supreme Court recognized this structural argument favoring limits on Congresss power to implement treaties long before Missouri v. Holland. 176. The most commonly cited enumerated powers supporting treaties are (1) the Presidents Treaty Clause power, (2) Congresss Commerce Clause power, and (3) Congresss Necessary and Proper Clause power. . Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal governments authority. 48. The Senate has the sole power to confirm those of the Presidents appointments that require consent, and to ratify treaties. at 152 (quoting Missouri v. Holland, 252 U.S. 416, 432 (1920)). Consequently, when the federal government acts to create or implement a treaty, the Constitution requires that it do so pursuant to an enumerated power. 101. . See Chemical Weapons Convention, supra note 53, art. ([T]here are situations in which American law tells you to look at international or foreign law.). 53. But that question of prudence is different from the question of constitutional authority to make such a promise. Because we must never forget that it is a constitution we are expounding, the Court must remember the Constitutions great outlines and important objects.181 The Framers genius in dividing sovereign authority between the federal and state governments certainly qualifies as one of the great outlines and important objects that Chief Justice Marshall deemed necessary for interpreting the Constitution. The Constitution gives to the Senate the sole power to approve, by a two-thirds vote, treaties negotiated by the executive branch. The consent of the House of Representatives is also necessary for the ratification of trade agreements and the confirmation of the Vice President. For example, if the President, with Senate approval, entered into a self-executing treaty that banned all political speech, that treaty would be invalid as contrary to the First Amendments Free Speech Clause. Many commentators are chomping at the bit for the federal government to make or implement treaties as a way of enacting laws that the Supreme Court has otherwise held as exceeding the federal governments powers.13 As Professor Nicholas Rosenkranz noted, scholars have even suggested that the International Covenant on Civil and Political Rights14 could resuscitate the Religious Freedom Restoration Act partially invalidated in City of Boerne v. Flores15 or the Violence Against Women Act partially invalidated in United States v. Morrison.16. Yet under Justice Holmess view, the legislative powers of Congress are not fixed by the Constitution, but rather may be increased by treaty.154 It would be a remarkable evasion of limited constitutional government if a foreign nations agreement, with the President and two-thirds of the Senate, could allow Congress to exercise powers otherwise reserved to the states. See Holland, 252 U.S. at 435 (The subject-matter is only transitorily within the State and has no permanent habitat therein.); id. 39. United States v. Darby, 312 U.S. 100, 124 (1941). In observing that a President could abuse the treaty power for his personal gain if the President alone possessed this power, Hamilton stated: The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.48. At the very least, the opinion should have grappled with these precedents if it was going to make broad pronouncements about Congresss ability to implement treaties. 59. The President thus may have had power to make the Chemical Weapons Convention, but Congress almost certainly did not have the power to enact a statute criminalizing Bonds wholly local conduct pertaining to a domestic dispute. When foreign policy issues take center stage in American politics, much of the focus tends to be on the executive branch. Part III therefore argues that the President cannot make any treaties displacing state sovereignty and that the Necessary and Proper Clause power does not give Congress the authority to implement a treaty in a way that displaces state sovereignty. The Supreme Court is on the cusp of deciding another important case about the treaty power: Bond v. United States.27 Bond will test whether an international treaty gave Congress the authority to create a federal law criminalizing conduct from a domestic dispute involving wholly local conduct. Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. 1350 (2012) (The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.). !PLEASE HELP!!! 65. . . That is, assume that the treaties themselves had domestic effect that prohibited individuals in the United States from hunting migratory birds or using chemicals (in the same manner as Congresss actual subsequent implementing legislation). Id. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.97, In the Bond litigation, the Obama Administration appears to agree that treaties cannot violate the Constitutions express prohibitions (such as those in the Bill of Rights).98, In contrast, the Administration appears to argue that the treaty power contains no subject-matter-based limitations.99 This is the predominant view in the legal academy: that there are essentially no other subject-matter limits on the Presidents power to make treaties.100 Under this majority view, which stems from Missouri v. Holland, a treaty can exercise power otherwise reserved to the states. As Rosenkranz has shown, though, that contention is factually inaccurate, because the words enforce treaties were struck from the preceding Militia Clause in Article I, Section 8, and not the Necessary and Proper Clause. The 1993 Chemical Weapons Convention formally known as the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction53 is an international arms-control agreement. But Americans did not give their federal government carte blanche to create whatever laws the federal government chooses. The Supreme Court has also repeatedly recognized that our constitutional structure prevents circumvention of enumerated limits on federal power, even if the Constitutions text does not explicitly prohibit a certain exercise of federal power. 112. . 132. There is nothing in [Article VI, the Supremacy Clause,] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. . Reid v. Covert, 354 U.S. 1, 1718 (1957) (plurality opinion) (quoting Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (internal quotation marks omitted)). . 75 (Alexander Hamilton), supra note 34, at 365 (stating that treaties are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign). 46. . The central thesis of this Essay is simple: the President, even with Senate acquiescence, has no constitutional authority to make a treaty with a foreign nation that gives away any portion of the sovereignty reserved to the states. 150. granted, 133 S. Ct. 978 (2013). Which branch has the power to approve treaties? The President therefore cannot unilaterally enter into a treaty. How does approving treaties balance power in the government quizlet? 2013). Others have tried to rehabilitate Missouri v. Hollands statement about the Necessary and Proper Clause with a competing structural argument.159 According to this argument, Congress must have the power to implement treaties, or else the President could enter into agreements with foreign nations and have no power to enforce these agreements.161 This result, though, is not absurd.162 As Rosenkranz highlighted, [a]ll non-self-executing treaties rely on the subsequent acquiescence of the House of Representatives something that our treaty partners can never be certain will be forthcoming. So when a foreign nation enters into a non-self-executing treaty with the United States, there is always a possibility that the treaty will not be implemented in the United States even if Congress had the authority under the Commerce Clause or another of its enumerated powers to pass the implementing statute. 131. Can prove laws to be and those arising from the nature of the government itself, and of that of the States.121 The recognition of structural limitations on the treaty power is not just a nineteenth-century concept. Besides this textual argument, there is an even more potent, structural argument for limits on Congresss power to implement treaties. The Senate has the power to approve it with two-third vote. The Federalist No. The Senates veto over the Presidents power to make treaties shows that the treaty power was so substantial that it required further dilution among the branches. The Constitution did not specify which branch should be the final arbiter of interpreting the Constitution, but that question has been settled for centuries the judicial branch has the power of judicial review under Marbury v. Madison.165 Judicial review should not apply only to those provisions of the Constitution favored by liberal academics. United States v. Lopez, 514 U.S. 549, 552 (1995). art. 135. at 1912. The Constitution gives the Senate the power to approve for ratification, by a two-thirds vote, treaties negotiated by the president and the executive branch. But if the Court does not do that, then it must resolve weighty treaty questions. !PLEASE HELP!!! 153. 8. 18 U.S.C. An Ordinary Man, His Extraordinary Journey, President Harry S. Truman's White House Staff, National History Day Workshops from the National Archives, National Archives and Records Administration. Approve treaties negotiated by the executive branch. The Senate maintains several powers to itself: It ratifies treaties by a two-thirds supermajority vote and confirms the appointments of the President by a majority vote. Under this view, the President could enter into a non-self-executing treaty to cede state territory, and then Congress would have the power to implement that treaty in light of war concerns. 29. treaties and presidential appointments. 64 (John Jay), supra note 34, at 388. . As the American people exercised their sovereign will in constituting our government, the Framers did not create a single governmental structure that possessed all power. 44. 64 (John Jay), supra note 34, at 389. In light of the breadth of Congresss implementing statute for the Chemicals Weapons Convention, it should come as no surprise that it was used to prosecute someone for a domestic dispute involving wholly local conduct. The Federalist No. 169. oversteps the boundary between federal and state authority.127, Printz v. United States128 subsequently built upon New York in holding that the federal government cannot circumvent [New Yorks] prohibition by conscripting the States officers directly.129 Printz reasoned that such commands are fundamentally incompatible with our constitutional system of dual sovereignty.130 Just recently, the Court relied heavily on New York to invalidate conditional spending provisions of the Affordable Care Act.131 Although Congresss Spending Clause power does not say anything explicit about conditional spending, the Court recognized that coercive conditional spending would undermine the status of the States as independent sovereigns in our federal system.132. 64 (John Jay), supra note 34, at 390. 115. . Part IV applies this Essays thesis and considers whether Justice Holmess 1920 Missouri v. Holland28 opinion must be overruled. 102. If no enumerated power justifies the creation or implementation of a treaty, the federal government is acting beyond its delegated authority, thus violating the sovereignty of the states and the people. The Reid plurality quoted an 1890 Supreme Court precedent for the proposition that a treaty cannot take away state territory without the states consent: The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. Thus, the Chemical Weapons Convention Implementation Act of 1998, as applied to Bond, would only be constitutional if it were consistent with Congresss enumerated powers. . You can specify conditions of storing and accessing cookies in your browser. It was suggested, however, that migratory birds were a subject of concern to other nations as well, for example Canada; and if the United States and Canada agreed to cooperate to protect the birds, Congress could enact the legislation it had previously adopted under its power to do what is necessary and proper to implement the treaty. That proposition runs counter to our entire constitutional structure. 143. Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause, 2006 U. Ill. L. Rev. 179. Congress uses a two-step process for approving expenditures. . 106. 27. The treaty in Missouri v. Holland was a non-self-executing treaty,111 so it was an agreement between nations that imposed no binding domestic obligations on states or individuals.112 A non-self-executing treaty can be a promise to enact certain legislation; [s]uch a promise constitutes a binding international legal commitment, but it does not, in itself, constitute domestic law.113 So in Missouri v. Holland, the President may have promised other countries that the United States would enact migratory bird legislation, but the Presidents promise itself was only an agreement made between nations.114. Some have plausibly argued that even if the President could enter into a treaty that covered subject matter outside of Congresss enumerated powers, Congresss powers still would not be increased.142. Unlike Missouri v. Holland, Bond presents the Court with an as-applied challenge. Habitat therein therefore can not unilaterally enter into a Treaty stage in American,! Justice Holmess 1920 Missouri v. Holland, 252 U.S. at 435 ( the subject-matter is only transitorily within the and... Congresss power to confirm those of the Presidents appointments that require consent, and to ratify treaties arguments in of... Even putting aside this Tenth Amendment textual argument, there are significant structural arguments in favor of limiting the Treaty... 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