Medelln v. Texas, 552 U.S. 491, 525 (2008). As Solicitor General of Texas, I had the privilege of arguing Medelln v. Texas,17 which recognized critical limits on the federal governments power to use a non-self-executing treaty to supersede state law.18, In Medelln, the United States had entered into the Vienna Convention on Consular Relations,19 a non-self-executing treaty providing that if a person detained by a foreign country so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State of such detention, and inform the [detainee] of his righ[t] to request assistance from the consul of his own state.20 The International Court of Justice, an arm of the United Nations, held that fifty-one Mexican nationals did not receive their Vienna Convention consular-notification rights before being convicted in state courts.21 The ICJ further ruled that these 51 Mexican nationals were entitled to reconsideration of their state-court convictions and sentences, notwithstanding any state procedural default rules barring defendants from raising these Vienna Convention arguments on collateral review because the issues were not raised at trial or on direct appeal.22 President George W. Bush then issued a Memorandum to the Attorney General, stating that the United States would discharge its international obligations under the ICJs ruling by having State courts give effect to the decision.23, The Court held that state procedural default rules could not be displaced by the non-self-executing Vienna Convention, the ICJs ruling, or the Presidents Memorandum.24 Medelln first ruled that the ICJs ruling was not automatically enforceable domestic law in light of the U.N. Charters structure for enforcing ICJ decisions.25 And it then clarified that the President cannot use a non-self-executing treaty to unilaterally make treaty obligations binding on domestic courts.26. Approves treaties Approves presidential appointments Impeaches and tries federal officers Overrides a president's veto Roguski said the pandemic treaty also would speed up the approval process for drugs and injectables, provide support for gain-of-function research, develop a Global Review Mechanism to oversee national health systems, implement the concept of One Health, and increase funding for so-called tabletop exercises or simulations. 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)). There are critical limits on the Presidents power to make treaties: (1) two-thirds of the Senate must approve of the treaty; (2) the treaty cannot violate an independent constitutional bar; and (3) the treaty cannot disrupt our constitutional structure by giving away sovereignty reserved to the states. This Essay argues to the contrary: the President cannot make a treaty that displaces the sovereign powers reserved to the states.101. The Senate does not ratify treaties. Instead, the Senate Head Money Cases, 112 U.S. 580, 598 (1884). The president has the sole power to negotiate treaties. Bond will have to resolve whether the Chemical Weapons Convention Implementation Act of 1998 can be applied to Bonds particular local conduct in the midst of a domestic dispute. Medelln v. Texas, 552 U.S. 491, 504 (2008) (internal quotation marks omitted); see also Chemical Weapons Convention, supra note 53, art. I. 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. As Rosenkranz has noted, Missouri never argued that a treaty could not expand Congresss power; rather, Missouri only argued that the Migratory Bird Treaty itself was invalid.157 Consequently, the issue of Congresss power to legislate pursuant to treaty received no analysis whatsoever, either in the district court opinions or in the Supreme Court in Missouri v. Holland.158. . Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.155, And a few years later, Justice Story, writing for the Supreme Court, reasoned that the Necessary and Proper Clause did not give Congress carte blanche power to implement treaties: [A]lthough the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect.156, With these precedents on the books, Justice Holmess single line from Missouri v. Holland seems quite out of place. The President faces this scenario any time the President enters into a non-self-executing treaty promising domestic legislation. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (quoting 10 Annals of Cong. Assn v. Garamendi, 539 U.S. 396, 414 (2003) (noting that the President has a vast share of responsibility for the conduct of our foreign relations))) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring))). I, 8, art. First, Missouri v. Holland may have turned on the international character of the regulated subject matter that is, migratory birds. Sovereignty should be the touchstone of any debate over the limits on the treaty power. 1. Either possibility can be prevented if sufficient limits are placed on the federal governments authority to make and implement treaties. Id. . 114. ); id. See Rosenkranz, supra note 13, at 1874. The United States agreed in the Convention, however, to enact domestic laws addressing chemical weapons.178 And Congress purported to enact such laws through the Chemical Weapons Convention Implementation Act of 1998. PLEASE HELP!!! The Federalist No. A treaty is primarily a compact between independent nations.5 Article II, Section 2 of the Constitution gives the President the power to make Treaties, provided two thirds of the Senators present concur.6 And the Supremacy Clause provides that treaties, like statutes, count as the supreme law of the land.7 Some treaties automatically have effect as domestic law8 these are called self-executing treaties. The Supreme Court in Medelln ruled that the President lacks constitutional authority to transform[] an international obligation arising from a non-self-executing treaty into domestic law.140 That responsibility, the Court held, falls to Congress.141 So we must consider whether there are any limits on Congresss ability to implement a treaty legislatively. Why and how is power divided and shared among national state and local governments? II, 2) (internal quotation marks omitted). . That proposition runs counter to our entire constitutional structure. 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. .); Printz v. United States, 521 U.S. 898, 924 (1997) (finding that exercises of federal power that violate[] the principle of state sovereignty cannot be proper for carrying into Execution the federal governments enumerated powers). (alteration in original) (quoting U.S. Const. 171. !PLEASE HELP! The President is the Commander in Chief, can grant Pardons, appoints and commissions Officers of the United States with the advice and consent of the Senate, makes recess appointments, must take Care that the Laws be faithfully executed, and can make Treaties with the approval of two-thirds of the Senate.92 But nowhere does the Constitution give the President a general power to do whatever he believes is necessary for the public interest. PLEASE HELP!!! Constitutional Limits on Creating and Implementing Treaties, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071402630.html, http://articles.washingtonpost.com/2012-06-22/opinions/35461763_1_royalty-payments-reagan-adviser-sea-treaty, http://www.refworld.org/pdfid/429c2fd94.pdf. What powers does Congress have? Planned Parenthood of Se. 64 (John Jay), supra note 34, at 390. at 498 (quoting Memorandum from President George W. Bush to the Attorney General (Feb. 28, 2005), available at http://www.refworld.org/pdfid/429c2fd94.pdf).).) . VII(1) (Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.). . 1277, 130809 (1999). Note, however, that Senators were originally chosen by state legislatures rather than through direct election. 18 U.S.C. 39. They separated the legislative, executive, and judicial powers into three distinct branches of a federal government.31 And they limited the powers possessed by the federal government by explicitly enumerating its powers while reserving unenumerated powers, like the general police power, to the states.32, Of particular relevance to this Essay, the Framers similarly carved up the power to make treaties. the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.118. 75 (Alexander Hamilton), supra note 34, at 449. . See Chemical Weapons Convention, supra note 53, art. United States v. Morrison, 529 U.S. 598 (2000). 146. . Federalism limits government by creating two sovereign powersthe national government and state governmentsthereby restraining the influence of both. After all, the President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.115 Treaties are agreements like contracts, and all law students learn that contracts can be breached for many reasons, including efficiency. 18 Pa. Cons. 75 (Alexander Hamilton), supra note 34, at 450. Indeed, James Madison remarked that [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . Thomas Jefferson, Manual of Parliamentary Practice 110 (Clark & Maynard 1870) (1801) (emphasis added). , including the prohibition and elimination of all types of weapons of mass destruction.54 The Convention mandates that signatory countries, as opposed to individuals, can never under any circumstances . The power of the Executive Branch is vested in the President of the United States, who also acts as head of state and Commander-in-Chief of the armed forces. In his 2005 Harvard Law Review article Executing the Treaty Power, Professor Nicholas Rosenkranz deftly presented both textual and structural arguments for !PLEASE HELP!!! 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. !PLEASE HELP! Indeed, two-thirds of the Senate may agree to the treaty, but that does not necessarily reflect the Senates view on the propriety of implementing legislation. See supra section III.B.1, pp. Copy. The Federalist No. The Senate does not ratify treaties. 98. '81 The Supreme Court granted certiorari82 and has heard argument in what could be one of the most important treaty cases it has ever considered. Sovereignty lies with the people, as Locke taught both us and the Framers. !PLEASE HELP! 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. See, e.g., Natl Fedn of Indep. 131. 81. . 142. . We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us. John Lockes Second Treatise on Civil Government argued that sovereignty initially lies with the people.29 When Locke wrote this in the seventeenth century, it was a novel idea that shattered the prevailing view that sovereignty lay with the English monarch or parliament. The Role of Congress in Adopting International Treaties. Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. !PLEASE HELP! Part III sets forth the central thesis of this Essay: courts should enforce constitutional limits on the Presidents power to make treaties and Congresss power to implement treaties by preventing either from infringing on the sovereignty reserved to the states. Executive Powers Assume arguendo that the Migratory Bird Treaty in Missouri v. Holland and the Chemical Weapons Convention in Bond were actually self-executing treaties. The Third Circuit in Bond considered the governments Necessary and Proper Clause claim only, declining to reach any arguments about other enumerated powers like the Commerce Clause.179 But it is worth briefly considering the Commerce Clause, because since 1937, the Commerce Clause has been the enumerated power most often used to justify congressional acts. Instead, he and the Senate would have enacted binding domestic law through treaties. Whether one couches this as a Tenth Amendment or a structural argument, the basic point is the people, acting in their sovereign capacity, delegated only limited powers to the federal government while reserving the remaining sovereign powers to the states or individuals. 122. ([T]here are situations in which American law tells you to look at international or foreign law.). 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 . 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. . at 1900 (emphasis omitted) (quoting Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. 2012), cert. Approve presidential appointments. Its purpose is to achiev[e] effective progress towards general and complete disarmament . Apr. I 1996) (repealed 1998). . . 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. at 265961 (joint dissent). One need not dream up fanciful hypotheticals to test the outer bounds of the treaty power. Perhaps another one of Congresss enumerated powers such as the Commerce Clause might happen to give Congress that authority. 41. United States v. Morrison, 529 U.S. 598, 61719, 627 (2000). 24, 1963, 21 U.S.T. 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. Which branch has the power to approve treaties? I, 8, cl. 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. See Holland, 252 U.S. at 435 (The subject-matter is only transitorily within the State and has no permanent habitat therein.); id. Medelln v. Texas, 552 U.S. 491, 504 (2008). 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. Just because Justice Holmess reasoning in Missouri v. Holland was problematic does not necessarily mean that the Supreme Court must overrule the cases holding. 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. Congresss implementing statute went far beyond the purpose of the Convention by covering much more than weapons of mass destruction. 88. It may not be prudent for a President to breach treaties or to enter into treaties that he knows will be ignored. . 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. 2701 (West 2000 & Supp. Transit Auth., 469 U.S. 528, 55054 (1985) (discussing the role of constitutional structure and congressional legislation in preserving state interests). Adopted Dec. 19, 1966, 999 U.N.T.S. Although Congress could rely on one of its enumerated powers besides that arising from the Necessary and Proper Clause such as that laid out in the Commerce Clause the more important question is whether the existence of a treaty can ever enhance Congresss implementation powers or whether the Necessary and Proper Clause always limits Congresss power to implement a treaty. 150. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment). The Federalist No. 47. The Presidents Power to Make Self-Executing Treaties. . The Roberts Court, too, has continued to enforce structural limits on the balance of power between the federal and state governments.175 These developments may very well render Missouri v. Holland a doctrinal anachronism that stare decisis should not save.176. Federal Power vs. States Rights in Foreign Affairs, 70 U. Colo. L. Rev. 78. The Federalist No. 134. 174. Such legislation would lack constitutional authority just like the Gun-Free Schools Zone Act invalidated in United States v. Lopez145 or the parts of the Violence Against Women Act struck down in Morrison.146 The Supreme Court has not had to clarify how closely the implementing legislation must fit with the treaty. 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. 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. Missouri v. Holland has been viewed as the seminal case on the federal governments treaty power for decades. 45 (James Madison), supra note 34, at 289. In Morrison, the Court invalidated part of the Violence Against Women Act of 1994 on the basis that it would have usurped the states police power to implement criminal laws for wholly local conduct.180 The parallels between Morrison and Bond are striking. (internal quotation marks omitted). The United States Senate has the power to approve treaties. The Senates authority to approve a treaty is based on the Treaty Clause in the United States Constitution. What Is a Treaty? A treaty is a formal agreement between two or more nations. It is an agreement between all parties that will become international law. 153. Instead, they reserved the unenumerated powers to the states. Fry v. United States, 421 U.S. 542, 547 n.7 (1975). . But it bears mentioning that one could imagine a middle position that avoids some of the deleterious consequences of limiting the Presidents Treaty Clause power. Similarly, the Framers saw they were not living in a world of utopian foreign nations, and these nations often did not have the best interests of the United States in mind. 139. 10609; see also Medelln v. Texas, 552 U.S. 491, 50406 (2008). 5. !PLEASE HELP! If Justice Holmes was correct, then the President and Senate could agree with a foreign nation to undo the checks and balances created by the people who founded our nation. The Senate has the sole power to confirm those of the Presidents appointments that require consent, and to ratify treaties. granted, 133 S. Ct. 978 (2013). 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. . Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause , 2006 U. Ill. L. Rev. 120. They correctly believed that societies could not magically progress to a point where humans constantly looked out for a common good divorced from self-interest. In these hypothetical scenarios, the President would not have simply made a promise among nations. Opened for Signature Dec. 10, 1982, 1833 U.N.T.S. Namely, there could have to be a sufficient nexus between the treaty and Congresss implementing legislation. The Third Circuit held that Bond lacked standing to raise this argument,78 and the U.S. Supreme Court unanimously reversed in finding that Bond did have standing to challenge the Act as applied to her.79 On remand, the Third Circuit rejected Bonds constitutional argument on the merits, finding that Congress had authority to enact the Chemical Weapons Convention Implementation Act under the Necessary and Proper Clause.80 The Third Circuit quoted Justice Holmess 1920 opinion, Missouri v. 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