Does Federalism Constrain the Treaty Power?

133 Pages Posted: 3 Nov 2002

See all articles by Edward T. Swaine

Edward T. Swaine

George Washington University Law School


The Supreme Court's revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties.

Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It also demonstrates that international law and constitutional law are not estranged on these questions. Not only does international law require federal states to interpret their constitutions so as to permit adhering to treaties, but the new federalism doctrines show a sensitivity toward preserving adequate means to pursue national and international ends like the treaty power, especially where those means turn on state consent.

Finally, the Article develops a treaty-compact device as an innovative tool for dissolving federalism's constraints. Taking advantage of parallel doctrinal developments that liberate state and national authority relating to foreign and interstate compacts, it demonstrates that combining the use of compacts with treaties offers solutions on each of the new federalism's fronts. The answer, then, is that federalism does not constrain the treaty power, when the Constitution is read as an organic whole, and interpreted in a fashion in keeping both with international law and the new federalism itself.

Keywords: treaty, constitution, international

Suggested Citation

Swaine, Edward, Does Federalism Constrain the Treaty Power?. Columbia Law Review, Vol. 103, p. 403, 2003, U of Penn Law School, Public Law Research Paper No. 12, Available at SSRN:

Edward Swaine (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
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202-994-0608 (Phone)

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