Executing the Treaty Power

Abstract:     
The canonical Missouri v. Holland holds that Congress has power to enact legislation to implement a treaty, even if it would lack the power to enact the same legislation absent the treaty. It holds, in other words, that the legislative power may be increased by treaty. This proposition is of enormous theoretical importance, because it is in deep tension with the fundamental constitutional principle of enumerated legislative powers. It is also of great and increasing practical importance, because it lies at the intersection of the two most dramatic trends in American law: the explosion of the United States' commitments under international law on matters of distinctly local concern, and the new willingness of the Supreme Court to police the limits of the enumerated powers of Congress. These two trends, in combination, are creating an increasing gap between what Congress is called upon to do by treaty and what it otherwise has enumerated power to do. It is this widening gap that implicates Missouri v. Holland.

This Article endeavors to prove that Missouri v. Holland is wrongly decided. It shows, first, that Justice Holmes misunderstood the relationship between the Treaty Clause and the Necessary and Proper Clause. Second, it demonstrates that the standard historical defense of Missouri v. Holland is based on a false premise. It concludes, based on constitutional text, history, and structure, as well as an examination of public choice and practical consequences, that Missouri v. Holland is wrong - treaties cannot increase the legislative power of Congress. Whether or not this Article definitively resolves this issue, however, it should, at a minimum, serve to launch a new debate in the constitutional law of foreign affairs: what is the scope of Congress's power to legislate pursuant to treaty?

Number of Pages in PDF File: 74

Accepted Paper Series