The Treaty Power and American Federalism
Michigan Law Review, Vol. 97, November 1998
Posted: 28 May 1998
For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. For a variety of reasons, however, the distinction between foreign and domestic affairs appears to be breaking down, such that there is an increasing need to reexamine the differential treatment of federal foreign affairs powers.
One example of such differential treatment is the purported immunity of the treaty power from federalism limitations. A central principle underlying American federalism, often recited by the Supreme Court, is that the national government is one of limited, enumerated powers. A corollary of this principle is that when the federal government makes supreme federal law, it is restrained in what it can do either by inherent limits in the scope of its delegated powers, or by the Tenth Amendment's reservation of powers to the states, or both. This is not the conventional wisdom, however, with respect to the treaty power. Although the treaty power is understood as being subject to the individual rights protections of the Constitution, and perhaps also to separation of powers restrictions, treaties are not thought to be limited either by subject matter or by the Tenth Amendment's reservation of powers to the states. I refer to this conventional wisdom as the "nationalist view."
In this Article, I question the nationalist view. As I explain, the two components of the nationalist view have developed in isolation. While either component might seem relatively unproblematic by itself, when considered together they violate the principle of limited, enumerated powers. The treaty power in our Constitution is a power to make supreme federal law. If such law can be made on any subject, without regard to the rights of the states, then the treaty power gives the federal government essentially plenary power vis-a-vis the states. Such plenary power, however, is exactly what American federalism denies.
Part I of the Article introduces the problem. Part II describes why the relationship between the treaty power and American federalism is particularly significant today, given recent changes in the nature of treaty-making as well as the recent federalism jurisprudence of the Supreme Court. Part III examines materials from the Founding period and the nineteenth century and concludes that, contrary to claims by its proponents, the nationalist view lacks substantial support in history. Part IV recounts how the nationalist view became orthodoxy, beginning with the Supreme Court's 1920 decision in Missouri v. Holland and followed by the eventual repudiation of a subject matter limitation on the treaty power. Part V then sets forth a critique of the nationalist view. In particular, it questions the three principal justifications for the nationalist view: that the treaty power is immune from federalism restrictions because that power has been exclusively delegated to the federal government; that federalism limitations are unnecessary because the political process is sufficient to protect states' rights; and that imposing federalism limitations on the treaty power would unduly interfere with the ability of the federal government to speak with one voice in foreign affairs. Finally, Part VI considers some of the options for protecting federalism in this context, and it concludes that the best option is to construe the treaty power as subject to the same federalism limitations as Congress's legislative powers.
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