Document Type

Article

Publication Date

2009

Abstract

The Supreme Court in Missouri v. Holland famously held that Congress has the power to pass a law to implement a treaty even if the law would not fall within Congress’ legislative power in the absence of the treaty. Essential to this holding were two distinct propositions. The first proposition is that the treaty-makers have the constitutional power to make treaties on matters falling outside Congress’ enumerated powers. The second is that, if the treaty-makers make such a treaty and the treaty is not self-executing, the Necessary and Proper Clause gives Congress the power to implement such a treaty through a statute even if, in the absence of the treaty, the statute would be beyond Congress’s legislative power. The Court in Missouri v. Holland focused on the first proposition. It devoted only one sentence to the second proposition: “If the treaty is valid 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.”

Controversy concerning the issue addressed in Missouri v. Holland has recurred throughout our history, but, each time, the controversy has revolved around the first proposition. That Congress has the power to implement any obligations undertaken under valid treaties has not been seriously questioned – until recently. In recent articles, critics of Missouri v. Holland have argued that it is the second holding that should be rejected. In their view, the Constitution permits the making of treaties falling outside Congress’ legislative power under Article I, but denies Congress the power to implement such treaties.

It is easy to see why no one has ever regarded such a regime as plausible: it would contradict one of the Founders’ key convictions – that the federal government must have the power to assure compliance with its international commitments. Although their particular proposals are untenable in light of the Founders’ design, these critics are on the right track insofar as they identify the second of Missouri v. Holland’s holdings as the potentially problematic one from a federalism perspective. The scope of the actual federalism problem attributable to the holding of Missouri v. Holland, however, is far more limited thanthey suggest, and does not warrant a complete rethinking of Treaty Power doctrine. It just requires some tinkering around Missouri v. Holland’s edges. The potential federalism problem concerns only aspirational treaty provisions, which might easily gain Senate consent because they do not appear to require anything in particular, but, under a broad interpretation of Missouri v, Holland, could then be the basis of a broad legislative power on matters falling outside Article I. The solution I propose is to exclude aspirational treaties from the scope of Missouri v. Holland’s second holding.The power to implement treaties under the Necessary and Proper clause is the power to require compliance with treaty obligations. Because aspirational treaty provisions do not impose obligations in any meaningful sense of the term, the clause does not give Congress the power to implement such provisions. If such provisions concern matters otherwise beyond Congress’ legislative powers, the Constitution leaves their implementation to the States.

Publication Citation

73 Mo. L. Rev. 939-967 (2008)

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