The Senate has the sole power to confirm those of the Presidents appointments that require consent, and to ratify In any event, even if there are certain hypotheticals involving war that may increase the treaty power, the sovereignty of the people and the sovereignty they duly delegated to the states at the Founding should not be discarded lightly. The Framers explicitly enumerated the powers of the federal government, and all unenumerated powers were reserved to the States respectively, or to the people.117 If the states retain some sphere of sovereign authority over which the federal government has no power, then all attempts by the federal government to infringe on this sovereign state authority should be unconstitutional regardless of whether the federal government tries to do so through the Presidents Treaty Clause power or Congresss enumerated powers. 70. . But the Necessary and Proper Clause combined with a treaty would not, under Rosenkranzs textual argument. .44. ); id. 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. 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. 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))). Impeach and try federal officers. !PLEASE HELP! According to them, the Treaty Clause is not an independent substantive font of executive power, but instead a vehicle for implementing otherwise-granted national powers in the international arena. Id. But that question of prudence is different from the question of constitutional authority to make such a promise. 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. The Federalist No. And it needed to be precisely calibrated because treaties would constitute the supreme law of the land in the United States.45 By dividing the treaty power first by reserving unenumerated powers to the states, and then by housing the federal treaty power in the executive branch with a Senate veto the Framers sought to check the use of this significant lawmaking tool. 13. Hope it helped! Thomas Jefferson, Manual of Parliamentary Practice 110 (Clark & Maynard 1870) (1801) (emphasis added). United States v. Darby, 312 U.S. 100, 124 (1941); see also Reid v. Covert, 354 U.S. 1, 18 n.35 (1957) (plurality opinion) (citing Darby, 312 U.S. at 12425). See id. 1, 44 n.158. (internal quotation marks omitted). See, e.g., Natl Fedn of Indep. 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. Those which are to remain in the State governments are numerous and indefinite.84 States, moreover, retain a residuary and inviolable sovereignty.85 If there were any doubt about that proposition at the Founding, the Tenth Amendment in the Bill of Rights clarified: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.86 Thus, [a]s every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government.87, The Supreme Court in the first Bond case, dealing with Bonds standing, expounded on these principles. Indeed, James Madison remarked that [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . Part IV applies this Essays thesis and considers whether Justice Holmess 1920 Missouri v. Holland28 opinion must be overruled. The president has the sole power to negotiate treaties. !PLEASE HELP! 83. 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. Many view it as granting the federal government nearcarte blanche authority to make and implement treaties. Both involve the application of a federal statute to a wholly local assault covered by state criminal law. But even putting aside this Tenth Amendment textual argument, there are significant structural arguments in favor of limiting the Presidents Treaty Clause power. 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. Legislation that has nothing to do with a treatys subject matter would be neither necessary nor proper for carrying into Execution that treaty.144 For instance, the Chemical Weapons Convention would not give Congress the authority to enact legislation that has nothing to do with chemical weapons. The Constitution gives to the Senate the sole power to approve, by a two-thirds vote, treaties negotiated by the executive branch. The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification. The President therefore cannot unilaterally enter into a treaty. 45 [hereinafter Chemical Weapons Convention]. This EssayEssay has argued that the Necessary and Proper Clause alone does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal governments powers. granted, 133 S. Ct. 978 (2013). The Federalist No. . 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. 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. Two-thirds of the Senate must approve of a treaty before it goes into effect. 11. Holden v. Joy, 84 U.S. (17 Wall.) Stat. Throughout the years, the Supreme Court has recognized Jeffersons insight that treaties should not be able to alter the Constitutions balance of power between the federal and state governments. The Presidents Power to Make Self-Executing Treaties. 67016771 (2012). The Presidents power to make treaties is limited by the procedures required by the Treaty Clause. 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. VII(1) (Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.). Overrides President's _veto >_ with _2/3_ vote. The President faces this scenario any time the President enters into a non-self-executing treaty promising domestic legislation. See Lawson & Seidman, supra note 133, at 63. Luckily, the Roberts Court has signaled that it will recognize the limits on the federal governments treaty power. In any event, there are good arguments to impose additional limits on Congresss power to implement treaties, and thus to reject Justice Holmess statement. Louis Henkin, Foreign Affairs and the US Constitution 190 (2d ed. 316, 407 (1819). Independence, MO 64050 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 . Federalism limits government by creating two sovereign powersthe national government and state governmentsthereby restraining the influence of both. , 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 . Much of the Framers conception of government is owed to John Locke. . Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. 1. . The Necessary and Proper Clause, combined with the Treaty, would not be sufficient to displace state sovereignty under the Tenth Amendment, according to this Essays framework. 166. !PLEASE HELP!!! See id. Id. !PLEASE HELP!!! See Natl Fedn of Indep. 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. 80. This Essay suggests that Missouri v. Holland can be construed simply as rejecting a facial challenge to a particular treaty, which may have validly covered some subject matter falling within Congresss Commerce Clause authority. 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. treaties and presidential appointments. Having established the proper framework and doctrines for considering challenges to presidential and congressional treaty powers, we can return to how the Supreme Court should resolve Bond v. United States. Treaty Power Law and Legal Definition. 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. So to test the limits on the Presidents power to make self-executing treaties, make one further assumption: that these hypothetical self-executing treaties cover some areas reserved for the states under our system of dual sovereignty. 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. See Curtiss-Wright, 299 U.S. at 315 (noting the fundamental differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs). As the Court has reminded us in the past two decades, there are still limits on this power. v. Sebelius, 132 S. Ct. 2566 (2012). Why and how is power divided and shared among national state and local governments? A non-self-executing treaty will raise questions about Congresss power to implement these treaties, because they will require congressional implementation to impose domestic obligations on individuals. 174. The answer is the legislative branch can approve treaties to settle argument that are unconstitutional. at 2602 (opinion of Roberts, C.J.). The Constitution gives each branch powers that limit the powers of the other two. XYZ Affair 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. The Senate has the sole power to confirm those of the Presidents appointments that require consent, and to ratify treaties. Nor does the Tenth Amendment simply state a truism, as the Supreme Court infamously surmised in 1941.123 The Tenth Amendment was included in the Bill of Rights to recognize that there are, in fact, significant powers reserved to the states. Perhaps such an implementing statute would be unconstitutional as applied to birds that remain intrastate (if those birds would even be migratory or covered by the statute), because Congresss enumerated powers might not extend that far.170 But the Courts subsequent doctrine on facial challenges clarifies that, outside the free speech context, the Court cannot invalidate a statute in whole unless the statute is unconstitutional in all of its applications.171 The Court in Missouri v. Holland, therefore, could have correctly rejected a facial challenge to Congresss implementation of the Migratory Bird Treaty. See e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (A facial challenge to a legislative Act . VII. II, 2) (internal quotation marks omitted). The rationale for this exception would be that ceding state territory as part of a peace treaty implements the presidential decision to sacrifice part of the country during wartime in order to save the rest.136 But Lawson and Seidman would cabin this authority to cede state territory to peace settlement[s] made during wartime; the Treaty Clause power would not permit this otherwise, so the President could not cede state territory via treaty as part of ordinary commercial relations.137 Perhaps a formal congressional declaration of war, or its equivalent, generally would be required for the President to have power to cede state territory.138 This structural check would ensure that the significant power to displace state sovereignty was used only with the acquiescence of both houses of Congress when the Presidents authority is at its maximum, per Justice Jacksons famous Steel Seizure concurrence.139. If the ultimate power resides with the people, then the people control government, rather than the government controlling the people. The separation of powers and federalism, therefore, are a manifestation of the Framers rejection of unchecked government power. United States v. Bond, 681 F.3d 149, 151 (3d Cir. The Federalist No. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (quoting 10 Annals of Cong. That proposition runs counter to our entire constitutional structure. 19. 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. If the President validly creates a treaty, another question regarding the federal governments treaty powers arises: are there limits on Congresss ability to implement duly made treaties? Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment). 11. . Under the framework set forth in this Essay, the President may have had the Treaty Clause power to make the Migratory Bird Treaty, because it was a non-self-executing treaty. 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. may justly be pronounced the very definition of tyranny.46. Ann. Cf. For example, Congress has the power to tax and spend, to regulate commerce with foreign nations and among the several states, and to declare war.90 The Constitution therefore withhold[s] from Congress a plenary police power that would authorize enactment of every type of legislation.91. If the federal Treaty Clause power could violate state sovereignty, it would disrupt our constitutional structure and encroach on state sovereignty just like in New York, Printz, and NFIB v. Sebelius. 2701 (West 2000 & Supp. 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. 133. Missouri v. Holland and the Presidents Power to Make Non-Self-Executing Treaties. United States v. Bond, 581 F.3d 128, 137 (3d Cir. . The ability to impose domestic obligations on states and individuals triggers Tenth Amendment concerns about the sovereign states and their reserved powers. Lawson & Seidman, supra note 125, at 63. Id. As Jay remarked: The power of making treaties is an important one, especially as it relates to war, peace, and commerce; and it should not be delegated but in such a mode, and with such precautions, as will afford the highest security that it will be exercised by men the best qualified for the purpose, and in the manner most conducive to the public good.39, Hamilton, too, did not trust the President alone to wield the hefty treaty power, as he feared that one could betray the interests of the state to the acquisition of wealth.40, At the same time, the Framers realized it was impractical to expect a collective body, like Congress or the Senate, to negotiate the minutiae of treaties. -Second, it !PLEASE HELP! Treaties are probably the most prevalent mechanism by which domestic law adopts international law. 115. Self-executing treaties will therefore raise questions about the Presidents Treaty Clause power but not Congresss power to implement these treaties. !PLEASE HELP!!!! 155. One frequent objection to structural limits on the Treaty Clause power is that they do not give the federal government sufficient latitude to negotiate peace treaties with concessions.133 This objection posits that the federal government must have authority to preserve the union by getting out of war through any means and that it is absurd to think that ceding state territory is a violation of state sovereignty.134. United States v. Darby, 312 U.S. 100, 124 (1941). This simple, revolutionary idea shaped our nation. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). But the ultimate concern of a Tenth Amendment limit is preserving state sovereignty as a structural principle, as opposed to having to answer whether the Treaty Clause grants substantive powers. Avena and Other Mexican Nationals (Mex. (emphasis omitted) (quoting Henkin, supra note 102, at 190). v. U.S.), 2004 I.C.J. 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. 1; U.S. Const. As Madison stated, [t]he powers delegated by the proposed Constitution to the federal government are few and defined. Individual liberty is also preserved by divided government: By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.89, So the people, acting as sovereign, only delegated to the federal government certain enumerated powers. 111. 78. II, 2) (internal quotation marks omitted). 88. So it is a non-self-executing treaty that does not automatically have effect as domestic law.57, The U.S. Senate ratified the Convention in 1997.58 A year later, Congress acted to implement the Convention by creating domestic law that would prohibit individuals from violating the Convention, the Chemical Weapons Convention Implementation Act of 1998.59. There are, however, two exceptions to this rule: the House must also approve appointments to the Vice Presidency and any treaty that involves foreign trade. at 434); Rosenkranz, supra note 13, at 187879 (noting that Missouri barely touched the question of whether an expansive executive treaty power would give Congress constitutional authority to pass enacting legislation that fell outside its enumerated powers). That is precisely why the Court subsequently backtracked from its truism comment, noting that [t]he Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States integrity or their ability to function effectively in a federal system.124 One possible implication of the Courts truism remark is that there are no powers reserved exclusively to the states. The Senate has the power to approve it with two-third vote. !PLEASE HELP! How the Court resolves Bond could have enormous implications for our constitutional structure. 65. . 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)). how to Appropriate Funds (much money will be spent for what purpose) One of the important powers of the senate is that it must approve. The President may very well have constitutional authority to enter into promises that he knows the United States either will not, or cannot, keep. . Whiskey Rebellion