The President may very well have constitutional authority to enter into promises that he knows the United States either will not, or cannot, keep. We accept the proposition that a fully informed eighteenth-century audience would have been startled to discover that the federal government had no power to cede territory, even as part of a peace settlement. (footnote omitted)). Part II briefly lays out the facts in Bond v. United States, which raises many difficult issues that will be discussed in the remainder of the Essay. !PLEASE HELP! Federalism limits government by creating two sovereign powersthe national government and state governmentsthereby restraining the influence of both. must establish that no set of circumstances exists under which the Act would be valid.). It may not be prudent for a President to breach treaties or to enter into treaties that he knows will be ignored. Missouri v. Holland, 252 U.S. 416, 43334 (1920). Put another way, when the people acted in their sovereign capacity and created the Constitution, they did not give the federal government all powers. This competing structural argument also assumes a doubtful premise: that the federal government must have unlimited powers to implement treaties it believes are in the public interest. In any event, even if there are certain hypotheticals involving war that may increase the treaty power, the sovereignty of the people and the sovereignty they duly delegated to the states at the Founding should not be discarded lightly. Declare war. Does the House have the power to approve foreign treaties? In observing that a President could abuse the treaty power for his personal gain if the President alone possessed this power, Hamilton stated: The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.48. See Garcia v. San Antonio Metro. 211, 243 (1872). 149. art. The President faces this scenario any time the President enters into a non-self-executing treaty promising domestic legislation. Their list of treaties in force defines a treaty as an international agreement made by the President of the The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.106, The Court held, by a vote of seven to two, that the Tenth Amendment did not render the treaty invalid.107 Justice Holmes reasoned that [i]t is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could.108 The Court did not decide whether the two lower federal courts had correctly invalidated the pre-treaty migratory bird statutes as exceeding Congresss enumerated powers.109 But it did identify the purportedly national and international character of migratory birds: The subject-matter is only transitorily within the State and has no permanent habitat therein.110. Legislation that has nothing to do with a treatys subject matter would be neither necessary nor proper for carrying into Execution that treaty.144 For instance, the Chemical Weapons Convention would not give Congress the authority to enact legislation that has nothing to do with chemical weapons. granted, 133 S. Ct. 978 (2013). The Appointments Clause of the United States Constitution grants the president the authority to nominate, and with the advice and consent of the Senate, appoint officers of 59. Boos v. Barry, 485 U.S. 312, 324 (1988) (quoting Reid v. Covert, 354 U.S. 1, 16 (1957)). . 171, 6 I.L.M. The President, consequently, may have the authority to promise a foreign nation that the United States will enact certain domestic legislation even if Congress has no power to enact this legislation, or the President believes that there is no chance that Congress would enact the legislation even if it had the power.116 In our system of limited government, the President does not have complete power; only Congress exercises the federal legislative power, and significant powers have been reserved for the states. 52. 111. A treaty is primarily a compact between independent nations.5 Article II, Section 2 of the Constitution gives the President the power to make Treaties, provided two thirds of the Senators present concur.6 And the Supremacy Clause provides that treaties, like statutes, count as the supreme law of the land.7 Some treaties automatically have effect as domestic law8 these are called self-executing treaties. See U.S. Const. (granting certiorari). Part III therefore argues that the President cannot make any treaties displacing state sovereignty and that the Necessary and Proper Clause power does not give Congress the authority to implement a treaty in a way that displaces state sovereignty. Bond v. United States, 131 S. Ct. 2355, 2360 (2011). 102. !PLEASE HELP!!! 60. 23. FILL IN THE BLANKS USING THE INFORMATION ON THE FIRST PAGE, 500 W US Hwy 24 So when the President makes any promise that the United States will take future action that can only be undertaken by other governmental actors, the President never knows for certain whether the United States will follow through and honor this promise. Similarly, Congress has no constitutional authority to implement a treaty through legislation that takes away any portion of the sovereignty reserved to the states. See Curtiss-Wright, 299 U.S. at 315 (noting the fundamental differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs). The Senate has the power to approve it with two-third vote. 133 S. Ct. 978 (2013) (mem.) 1350 (2012) (The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.). Can prove laws to be !PLEASE HELP!!! Others have tried to rehabilitate Missouri v. Hollands statement about the Necessary and Proper Clause with a competing structural argument.159 According to this argument, Congress must have the power to implement treaties, or else the President could enter into agreements with foreign nations and have no power to enforce these agreements.161 This result, though, is not absurd.162 As Rosenkranz highlighted, [a]ll non-self-executing treaties rely on the subsequent acquiescence of the House of Representatives something that our treaty partners can never be certain will be forthcoming. So when a foreign nation enters into a non-self-executing treaty with the United States, there is always a possibility that the treaty will not be implemented in the United States even if Congress had the authority under the Commerce Clause or another of its enumerated powers to pass the implementing statute. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). !PLEASE HELP!!! See, e.g., Martin S. Flaherty, Are We to Be a Nation? 662, 736 (1836)).)) !PLEASE HELP! For nearly a century, the touchstone of this analysis has been one line from Missouri v. Holland: If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, 8, as a necessary and proper means to execute the powers of the Government.143 So according to Justice Holmes, the Necessary and Proper Clause gives Congress authority to pass any legislation implementing a treaty. 2701 (West 2000 & Supp. In many ways, this arrangement would resemble the exception Professors Lawson and Seidman recognized regarding the Presidents Treaty Clause power,167 but it would just require Congress to act in conjunction with the President. Instead, they reserved the unenumerated powers to the states. challenged provisions . PLEASE HELP!!! 155. 75, at 449 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (arguing that the treaty power was not necessarily legislative or executive, because a treaty did not prescribe rules for the regulation of the society or require execution of the laws it was the power to enter into contracts with foreign nations). !PLEASE HELP!!! Missouri v. Holland has been viewed as the seminal case on the federal governments treaty power for decades. 122. But Americans did not give their federal government carte blanche to create whatever laws the federal government chooses. How the Court resolves Bond could have enormous implications for our constitutional structure. 163. !PLEASE HELP!!! The people, as initial holders of their sovereignty, agree to cede some power to form society and government for their collective prosperity and security. [A]llocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States . 169. II, 2) (internal quotation marks omitted). !PLEASE HELP!!! v. Sebelius, 132 S. Ct. 2566 (2012). . Thomas Jefferson, Manual of Parliamentary Practice 110 (Clark & Maynard 1870) (1801) (emphasis added). What does the judicial branch do with laws? 12, 153 (Mar. With treaties potentially supplanting federal and state governmental authority, the President and Senate should carefully scrutinize all treaties, as a policy matter. 67. 2. 21. !PLEASE HELP! United States v. Bond, 681 F.3d 149, 16566 (3d Cir. 1867, 187173 & nn.1925 (2005). If the federal government could evade the limits on its powers by making or implementing treaties, then our system of dual sovereignty would be grievously undermined. 81. A 1907 memorandum approved by the Secretary of State stated that the limitations on the treaty power that necessitate legislative implementation may "be found in the 101. Consequently, when the federal government acts to create or implement a treaty, the Constitution requires that it do so pursuant to an enumerated power. The treaty power is a carefully devised mechanism for the federal government to enter into agreements with foreign nations. In fact, the Supreme Court recognized this structural argument favoring limits on Congresss power to implement treaties long before Missouri v. Holland. Can prove laws to be against the_Constitution_. Executive Powers -First, it passes an authorization bill that establishes a program and says how much can be spent on the program. 83. How does the legislative branch approving treaties balance the government? Missouri v. Holland, 252 U.S. 416, 432 (1920). Even if the Senate ratifies a treaty, it will not be valid 177. Federal Power vs. States Rights in Foreign Affairs, 70 U. Colo. L. Rev. Throughout the years, the Supreme Court has recognized Jeffersons insight that treaties should not be able to alter the Constitutions balance of power between the federal and state governments. Congress uses a two-step process for approving expenditures. At the same time, our courts must scrutinize the federal governments powers to make and implement treaties. !PLEASE HELP! Approve presidential appointments. 132. Two-thirds of the Senate must approve of a treaty before it goes into effect. In 1988, the Court said it is well established that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.'122. For example, if the President, with Senate approval, entered into a self-executing treaty that banned all political speech, that treaty would be invalid as contrary to the First Amendments Free Speech Clause. . The Constitution gives to the 31. !PLEASE HELP!!! Luckily, the Roberts Court has signaled that it will recognize the limits on the federal governments treaty power. John Lockes Second Treatise on Civil Government argued that sovereignty initially lies with the people.29 When Locke wrote this in the seventeenth century, it was a novel idea that shattered the prevailing view that sovereignty lay with the English monarch or parliament. 16. 121. . Co., 133 S. Ct. 1659, 1664 (2013). 36. But even putting aside this Tenth Amendment textual argument, there are significant structural arguments in favor of limiting the Presidents Treaty Clause power. The President is the Commander in Chief, can grant Pardons, appoints and commissions Officers of the United States with the advice and consent of the Senate, makes recess appointments, must take Care that the Laws be faithfully executed, and can make Treaties with the approval of two-thirds of the Senate.92 But nowhere does the Constitution give the President a general power to do whatever he believes is necessary for the public interest. how to Appropriate Funds (much money will be spent for what purpose) One of the important powers of the senate is that it must approve. Instead, the Senate Besides this textual argument, there is an even more potent, structural argument for limits on Congresss power to implement treaties. Brief for the United States at 46, Bond v. United States, No. 114. Medelln, 552 U.S. at 499 (alterations in original) (quoting Vienna Convention, supra note 19, art. The Constitution creates a Federal Government of enumerated powers.83 Our Framers purposely designed it that way. 172. !PLEASE HELP! The museum has justfinished a massive renovation of the museum and its exhibitions, the first major renovation in more than 20 years and the largest since the museum opened its doors in 1957. The Federalist No. 28 U.S.C. There is nothing in [Article VI, the Supremacy Clause,] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. The Third Circuit held that Bond lacked standing to raise this argument,78 and the U.S. Supreme Court unanimously reversed in finding that Bond did have standing to challenge the Act as applied to her.79 On remand, the Third Circuit rejected Bonds constitutional argument on the merits, finding that Congress had authority to enact the Chemical Weapons Convention Implementation Act under the Necessary and Proper Clause.80 The Third Circuit quoted Justice Holmess 1920 opinion, Missouri v. Holland, for the proposition that, if a treaty is valid, there can be no dispute about the validity of the statute [implementing it] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. 84. HELP! If the federal Treaty Clause power could violate state sovereignty, it would disrupt our constitutional structure and encroach on state sovereignty just like in New York, Printz, and NFIB v. Sebelius. !PLEASE HELP!!! 3 (John Jay), supra note 34, at 36. !PLEASE HELP! But perhaps, if called to do so, the Court would adopt a doctrine similar to the City of Boerne congruence-and-proportionality doctrine,147 under which the subject matter of the implementing legislation could not substantially exceed the treatys subject matter. 159. II(1)(a). Bus. The Constitution gives each branch powers that limit the powers of the other two. 2, 1992). United States v. Bond, 681 F.3d 149, 162 n.14 (3d Cir. A non-self-executing treaty will raise questions about Congresss power to implement these treaties, because they will require congressional implementation to impose domestic obligations on individuals. Bond v. United States, 131 S. Ct. 2355, 2364 (2011). And they also created a judicial branch to check the legislative and executive branches. 11. Id. 19. There are, however, two exceptions to this rule: the House must also approve appointments to the Vice Presidency and any treaty that involves foreign trade. !PLEASE HELP! So it is a non-self-executing treaty that does not automatically have effect as domestic law.57, The U.S. Senate ratified the Convention in 1997.58 A year later, Congress acted to implement the Convention by creating domestic law that would prohibit individuals from violating the Convention, the Chemical Weapons Convention Implementation Act of 1998.59. 1, 1; U.S. Const. . Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). See Medelln v. Texas, 552 U.S. 491, 50405 (2008). 10609; see also Medelln v. Texas, 552 U.S. 491, 50406 (2008). Two-thirds of the Senate must approve of a treaty before it goes into effect. These and other treaties could be used to infringe on state sovereignty. 75 (Alexander Hamilton), supra note 34, at 450. .102, The Migratory Bird Treaty at issue in Missouri v. Holland was a non-self-executing treaty.103 Rather than challenge Congresss authority to pass a statute implementing this treaty, Missouri challenged the Presidents authority to make the treaty in the first place.104 Missouri argued that the Presidents power to make treaties was limited by the Tenth Amendment, such that a treaty could not address subject matter that did not fall within Congresss enumerated legislative powers.105 Justice Holmes phrased the question presented, with evident disdain, as, The treaty in question does not contravene any prohibitory words to be found in the Constitution. may justly be pronounced the very definition of tyranny.46. Missouri v. Holland and the Presidents Power to Make Non-Self-Executing Treaties. The Constitution did not specify which branch should be the final arbiter of interpreting the Constitution, but that question has been settled for centuries the judicial branch has the power of judicial review under Marbury v. Madison.165 Judicial review should not apply only to those provisions of the Constitution favored by liberal academics. Perhaps another one of Congresss enumerated powers such as the Commerce Clause might happen to give Congress that authority. In light of the breadth of Congresss implementing statute for the Chemicals Weapons Convention, it should come as no surprise that it was used to prosecute someone for a domestic dispute involving wholly local conduct. United States v. Bond, 681 F.3d 149, 151 (3d Cir. Part IV applies this Essays thesis and considers whether Justice Holmess 1920 Missouri v. Holland28 opinion must be overruled. Before Congress can implement a treaty through legislation, the President must create a valid treaty. The Senate maintains several powers to itself: It ratifies treaties by a two-thirds supermajority vote and confirms the appointments of the President by a majority vote. Raise and provide public money and oversee its proper expenditure. Head Money Cases, 112 U.S. 580, 598 (1884). at 152 (quoting Missouri v. Holland, 252 U.S. 416, 432 (1920)). If Justice Holmes was correct, then the President and Senate could agree with a foreign nation to undo the checks and balances created by the people who founded our nation. 41. Which branch has the power to approve treaties? treaties and presidential appointments. Who has the power to ratify treaties in the United States? The three branches of the U.S. government are the legislative, executive and judicial branches. VII. 8. The 1998 Act adopted the Conventions definition of chemical weapon, which covers any toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter.62 And toxic chemical, in turn, includes any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.63 The statute does include an exemption for a toxic chemical intended for [a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.64 Nevertheless, the chemical weapons crime created by the 1998 Act was not tailored to prohibit only weapons of mass destruction, even though that was the express purpose of the Convention. Self-executing treaties will therefore raise questions about the Presidents Treaty Clause power but not Congresss power to implement these treaties. !PLEASE HELP! So to test the limits on the Presidents power to make self-executing treaties, make one further assumption: that these hypothetical self-executing treaties cover some areas reserved for the states under our system of dual sovereignty. 14. . The president has the sole power to negotiate treaties. at 432, on general grounds, id. 134. develop, produce, otherwise acquire, stockpile or retain chemical weapons or use them.55 It further requires signatory states to prohibit individuals from acting in a manner that would violate the Convention if the individuals were a signatory state.56 But the Convention does not contain self-executing provisions that obligate states to impose these duties on individuals. That said, Missouri v. Holland probably would have to be overruled if one believes that Congress lacked the Commerce Clause authority to implement the Treaty legislatively. VII(1) (Each State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention.). . The United States agreed in the Convention, however, to enact domestic laws addressing chemical weapons.178 And Congress purported to enact such laws through the Chemical Weapons Convention Implementation Act of 1998. The Senate does not ratify treaties. 64 (John Jay), supra note 34, at 390. . Either way, we must determine whether any of the . The Federalist No. Having established the proper framework and doctrines for considering challenges to presidential and congressional treaty powers, we can return to how the Supreme Court should resolve Bond v. United States. The United States Constitution provides that the president shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur (Article II, section 2). 4 (John Jay), supra note 34, at 40 (emphasis omitted). To hold otherwise would be to undermine the constitutional structure created at the nations founding. !PLEASE HELP!!! The Presidents power to make treaties is limited by the procedures required by the Treaty Clause. They correctly believed that societies could not magically progress to a point where humans constantly looked out for a common good divorced from self-interest. That, however, may be an overreading of Missouri v. Holland, as discussed further below in Part IV. 368 (ratified with reservations by the United States Senate on Apr. !PLEASE HELP!!! The Court, however, has suggested that this may not be absurd. But cf. . A four-Justice plurality acknowledged this principle in Reid v. Covert,95 holding that treaties authorizing military commission trials of American citizens abroad on military bases could not displace Fifth and Sixth Amendment criminal procedure rights.96 Justice Black, joined by Chief Justice Warren, Justice Douglas, and Justice Brennan, recognized: [N]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. 18 Pa. Cons. Carol Anne Bond lived near Philadelphia, and she sought revenge after finding out that her close friend, Myrlinda Haynes, was pregnant and that the father was Bonds husband.65 Bond harassed Haynes with telephone calls and letters, which resulted in a minor state criminal conviction.66 Bond then stole a particular chemical from her employer, a chemical manufacturer, and ordered another chemical over the internet.67 She placed these chemicals on Hayness mailbox, car door handle, and front doorknob.68 As a result, Haynes suffered a minor burn on her hand.69, Bond probably could have been charged with violations of state law, like assault,70 aggravated assault,71 or harassment.72 Instead, the federal government stepped in and charged Bond with violating the Chemical Weapons Convention Implementation Act, alleging that she used chemical weapons when she placed chemicals on Hayness mailbox, car door handle, and front doorknob.73, Bond argued that Congress lacked the constitutional authority to enact the Act, at least as applied to her conduct in the domestic dispute.74 The district court rejected her argument.75 Bond then pled guilty on the condition that she retained her right to appeal her constitutional argument.76 The district court sentenced her to six years imprisonment.77. United States v. Darby, 312 U.S. 100, 124 (1941). United States v. Morrison, 529 U.S. 598 (2000). The most commonly cited enumerated powers supporting treaties are (1) the Presidents Treaty Clause power, (2) Congresss Commerce Clause power, and (3) Congresss Necessary and Proper Clause power. The first power implicates a treatys creation, while the latter two involve a treatys implementation. I, 8, art. Either possibility can be prevented if sufficient limits are placed on the federal governments authority to make and implement treaties. One need not dream up fanciful hypotheticals to test the outer bounds of the treaty power. Fax: 816-268-8295. See Chemical Weapons Convention, supra note 53, art. at 63 (Vasan Kesavan has recently demonstrated, at great length, that the general understanding at the time of the framing was that treaties permitted the cession of American territory, including territory that was part of a state, without the consent of the state in which the territory was located. 93. I, 8, art. !PLEASE HELP!!! in part, [as] an end in itself, to ensure that States function as political entities in their own right.88 Preserving the sovereign dignity of the states, though, was not the only reason to construct the federal government as one of enumerated powers. As early as 1836, the Court explained, Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.119 In 1872, the Court expanded on this point: [T]he framers of the Constitution intended that [the treaty power] should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.120, So by 1890, the Court noted that the treaty power is subject to those restraints which are found in [the Constitution] against the action of the government . As Rosenkranz has noted, Missouri never argued that a treaty could not expand Congresss power; rather, Missouri only argued that the Migratory Bird Treaty itself was invalid.157 Consequently, the issue of Congresss power to legislate pursuant to treaty received no analysis whatsoever, either in the district court opinions or in the Supreme Court in Missouri v. Holland.158. !PLEASE HELP! 1996) (footnotes omitted). The Court rejected a facial challenge to the Migratory Bird Treaty Act168; Missouri had argued only that the Presidents power to make treaties was limited by the Tenth Amendment, such that a treaty could not address subject matter outside the limits of Congresss enumerated legislative powers.169 Justice Holmes erroneously asserted that the Presidents treaty power extended to subjects not expressly enumerated in the Constitution and, in dicta, that Congress had plenary power under the Necessary and Proper Clause to implement a treaty. Both involve the application of a federal statute to a wholly local assault covered by state criminal law. 181. III, 1. Unlike Missouri v. Holland, Bond presents the Court with an as-applied challenge. The As Thomas Jefferson explained, the treaty power must have meant to except . Congress has specifically defined powers enumerated in Article I, Section 8. Some treaties, like the Arms Trade Treaty,10 the United Nations Convention on the Law of the Sea,11 and the Convention on the Rights of Persons with Disabilities,12 purport to let international actors set policy in areas already regulated by the federal government. at 1892 (emphasis omitted) (quoting Prigg v. Pennsylvania, 41 U.S. (16 Pet.) What powers does Congress have? You can specify conditions of storing and accessing cookies in your browser. The Federalist No. . Because the Treaty imposed no domestic obligations of its own force, the mere creation of the Treaty could not necessarily have displaced state sovereignty protected by the Tenth Amendment. Three Branches of Government The Balance of Government (answers) The Balance of Government (answers) EXECUTIVE LEGISLATIVE Interprets _ laws _. The treaty was made [and] the statute enacted . 31). One would still have to determine whether there were limits on (1) the Presidents power to make self-executing treaties or (2) Congresss authority to legislatively implement treaties. See Natl Fedn of Indep. A federal government to enter into agreements with foreign nations made [ and how does approving treaties balance power in the government. At 499 ( alterations in original ) ( how does approving treaties balance power in the government Missouri v. Holland, as discussed further in. 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