Abstract

http://ssrn.com/abstract=535722
 


 



Treaties and the Eleventh Amendment


Carlos Manuel Vazquez


Georgetown University Law Center

2002

Virginia Journal of International Law, Vol. 42, pp. 713-742, 2002
Georgetown Public Law Research Paper No. 12-082
Georgetown Law and Economics Research Paper No. 12-029

Abstract:     
The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce Power. The Court's recent decisions striking down federal statutes as exceeding the Commerce Power for the first time since the New Deal have revived the question of Congress's power to implement treaties by enacting statutes that cannot be made in the absence of a treaty. Scholars have argued that Missouri v. Holland should be rethought in the light of such decisions as United States v. Lopez, while others have defended Missouri v. Holland.

One important branch of the Court's recent federalism jurisprudence is that relating to state sovereign immunity. In Seminole Tribe of Florida v. Florida, the Court held that Congress may not abrogate the states' Eleventh Amendment immunity pursuant to its Commerce Power, reversing Pennsylvania v. Union Gas Co. Although the Supreme Court has reaffirmed the holding of Fitzpatrick v. Bitzer that Congress may abrogate Eleventh Amendment immunity pursuant to the Fourteenth Amendment, its decisions make it clear that the window left open by Fitzpatrick is narrow. These decisions have led some scholars to consider whether the Treaty Power provides an alternative basis for abrogating the states' sovereign immunity.

This paper focuses on the latter question. It considers whether state sovereign immunity constrains Congress's power to authorize remedies against states pursuant to the Treaty Power. The author is among those who have defended the holding of Missouri v. Holland that Congress may pass laws necessary to implement treaties even if the laws would exceed Congress's legislative power in the absence of a treaty, he concludes here that Congress's power to implement treaties is not exempt from the federalism limitations reflected in the doctrine of state sovereign immunity.

Number of Pages in PDF File: 31

Keywords: treaties, federalism, Eleventh Amendment, state sovereign immunity, Supremacy Clause, Supreme Court

JEL Classification: K30, K39

Accepted Paper Series


Download This Paper

Date posted: April 26, 2004 ; Last revised: July 24, 2012

Suggested Citation

Vazquez, Carlos Manuel, Treaties and the Eleventh Amendment (2002). Virginia Journal of International Law, Vol. 42, pp. 713-742, 2002; Georgetown Public Law Research Paper No. 12-082; Georgetown Law and Economics Research Paper No. 12-029. Available at SSRN: http://ssrn.com/abstract=535722

Contact Information

Carlos Manuel Vazquez (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
6009 Hotung Building
Washington, DC 20001
United States
202-662-9447 (Phone)
202-662-9411 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 553
Downloads: 4

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.312 seconds