Document Type

Article

Publication Date

1999

Abstract

This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court's anti-commandeering doctrine. The first concerns the distinction between commandeering and mere encouragement. Specifically, can a treaty such as the one involved in Breard be upheld as an exercise of conditional preemption, on the theory that it gives the state the choice between providing notification and refraining from arresting aliens? The answer to that question depends on whether a treaty barring states from arresting aliens would be valid, and the answer to that question turns on where the line falls between commandeering and valid preemption. If, as some lower courts have found, Printz and New York prohibit legislation that imposes obligations on states but not individuals, or regulates the states in their roles as governments, then a treaty barring the arrest of aliens would contravene the anti-commandeering principle. But, if so, the anti-commandeering principle could not be applicable to the treaty power, as it would call into question too much Supreme Court precedent. If the anti-commandeering principle is narrower, there would appear to be no reason to exempt the Treaty Power from its scope. Under the narrow interpretation of Printz and New York, the sorts of "obligations" to which the treaty-makers would legitimately want to subject the states would be valid "encouragement" under the conditional preemption doctrine. The anti-commandeering principle, narrowly construed, would thus not represent much of a burden on the Treaty Power. (Whether the anti-commandeering principle is broad or narrow is before the Supreme Court this Term in Condon v. Reno.)

Publication Citation

70 U. Colo. L. Rev.1317-1360 (1999)

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