Congress's Treaty-Implementing Power in Historical Practice

Jean Galbraith

University of Pennsylvania Law School

June 6, 2013

William & Mary Law Review, Forthcoming

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.

Number of Pages in PDF File: 44

Keywords: Treaties, Congress, Necessary and Proper Clause, Missouri v. Holland

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Date posted: June 8, 2013 ; Last revised: July 12, 2014

Suggested Citation

Galbraith, Jean, Congress's Treaty-Implementing Power in Historical Practice (June 6, 2013). William & Mary Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2275355 or http://dx.doi.org/10.2139/ssrn.2275355

Contact Information

Jean Galbraith (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
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