22 Pages Posted: 25 Nov 2014 Last revised: 22 May 2015
Date Written: November 25, 2014
This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Congress’s power to enact laws necessary and proper to carry into execution the treatymaking power can be read to include the power to enforce treaties because treatymaking and treaty enforcement are inevitably intertwined. As the Framers understood from experience, a nation with a reputation for unreliable treaty enforcement would be impaired in its ability to make future treaties, as potential partners would regard it as untrustworthy. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. But this structural point is overstated, both because treatymaking itself is constrained by the need for supermajority Senate consent and because federal power can be exercised through self-executing treaties regardless of limits on Congress. Indeed, structural considerations cut at least as strongly the other way, for it seems unlikely after the experiences of the Articles of Confederation that the Framers would have accepted a category of treaties whose enforcement could not be assured at the national level.
Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. If Congress alone can decide what a treaty means and what its enforcement requires, Congress may use the treaty to claim powers not contemplated by the treatymakers. Congress could thus invoke the treaty while circumventing the supermajority constraint on treatymaking.
Third, therefore, courts should not defer fully to Congress in this matter; instead, they should assure that Congress’s actions do not exceed what is justified by the treaty. Although Congress has power to pass laws necessary and proper to preserve the United States’ reputation for treaty compliance, Congress must use this power in ways that do not unduly infringe federalism. In particular, this Article suggests two types of judicial limitations. Courts can make an independent assessment of the meaning of the treaty, including employing a presumption that treaties do not affect purely domestic matters. Courts can also review the necessity and propriety of Congress’s enforcement legislation, prominently including in this assessment whether enforcement of the treaty is appropriately done at the federal rather than the state level. As a result, Congress’s power to enforce treaties, while broad, need not be unlimited.
As an illustration, application of this approach in Bond v. United States would find the federal legislation (as applied to Bond) beyond Congress’s power, both because the Chemical Weapons Convention did not reach Bond’s conduct and because even if it did, state regulation was adequate to assure U.S. compliance with the Convention. As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited so that it does not pose an undue threat to federalism.
Keywords: treaties, federalism, Bond v. United States, Missouri v. Holland
JEL Classification: K33
Suggested Citation: Suggested Citation
Ramsey, Michael D., Congress’s Limited Power to Enforce Treaties (November 25, 2014). Notre Dame Law Review, vol. 90, p. 1539 (2015). Available at SSRN: https://ssrn.com/abstract=2530352