Abstract

http://ssrn.com/abstract=2155179
 


 



The Treaty Power: Its History, Scope, and Limits


Oona A. Hathaway


Yale University - Law School

Spencer E. Amdur


Yale University - Law School

Celia Choy


Covington & Burling

Samir Deger-Sen


Independent

Haley Proctor


U.S. Court of Appeals for the D.C. Circuit

Eric John G. Paredes


Marsh & McLennan Companies - Oliver Wyman

Sally Pei


Yale University - Law School

October 1, 2012

Cornell Law Review, Forthcoming
Yale Law School, Public Law Working Paper No. 267

Abstract:     
This article examines the scope of the treaty power under the U.S. Constitution. A recent challenge in the courts has revived a debate over the reach and limits of the federal government’s treaty power that dates to the Founding. This article begins by placing today’s debate into historical perspective — examining the understanding of the treaty power from the time of the Founding, through the Supreme Court’s landmark decision in 1920 in Missouri v. Holland, up to the present. It then provides a systematic account of the actual and potential court-enforced limits on the treaty power — including affirmative constitutional limits, limits on implementing legislation, and limits on the scope of the Article II treaty power itself. In the process, the article develops a detailed pretext test that courts could use to assess whether the federal government has exceeded its Article II authority. Because even this elaborated pretext test is unlikely to be used to invalidate many treaties, the most important protection against abuse of the treaty power lies in the structural, political, and diplomatic checks on the exercise of the power itself — checks that the article describes and assesses. These checks provide for what the article terms “top-down” and “bottom-up” federalism accommodation. The result is a flexible system in which state and federal governments work together to preserve the boundary between their respective areas of sovereignty. The article concludes that this flexible system of accommodation is likely to be more effective than any court-enforced restraint at protecting against abuse of the federal treaty power.

Number of Pages in PDF File: 72

Keywords: Article II, Necessary and Proper Clause, Constitution, Commerce Clause, federalism, U.S. v. Bond, Missouri v. Holland

JEL Classification: K33, K10

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Date posted: October 1, 2012  

Suggested Citation

Hathaway, Oona A. and Amdur, Spencer E. and Choy, Celia and Deger-Sen, Samir and Proctor, Haley and Paredes, Eric John G. and Pei, Sally, The Treaty Power: Its History, Scope, and Limits (October 1, 2012). Cornell Law Review, Forthcoming; Yale Law School, Public Law Working Paper No. 267. Available at SSRN: http://ssrn.com/abstract=2155179

Contact Information

Oona A. Hathaway (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)
Spencer E. Amdur
Yale University - Law School ( email )
127 Wall St.
New Haven, CT 06511
United States
Celia Choy
Covington & Burling ( email )
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004-2401
United States
(202) 662-5518 (Phone)
Samir Deger-Sen
Independent ( email )
No Address Available
Haley Nix Proctor
U.S. Court of Appeals for the D.C. Circuit ( email )
DC
United States
Eric John G. Paredes
Marsh & McLennan Companies - Oliver Wyman ( email )
3601 Hongkong New World Tower
300 Huaihai Zhong Road
Shanghai, 200021
China
Sally Pei
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
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