Tag: Holmes

The Federal Government Can’t Give Itself More Power Just By Signing a Treaty

With ObamaCare, immigration, affirmative action, gay marriage, and the other hot-button issues rolling through our courts this year, some of you may have overlooked a little case on the Treaty Power, United States v. Bond, which was at the Court last year and may well make it back next year.

I’ve covered Bond before, and Cato has filed two amicus briefs in the case (before the Supreme Court and then in the Third Circuit on remand). As I described it last year, Bond is “your typical sordid tale of adultery, toxic chemicals, and federalism.” It’s a bizarre scenario you can read about in the previous links, but the issue that has drawn Cato’s attention—and that of Paul Clement, who remains Mrs. Bond’s counsel—is whether Congress can regulate the conduct of something solely because the United States is party to a treaty regarding that subject.

That is, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, the dominant reading of an old precedent called Missouri v. Holland is that its power increases beyond constitutional limits. Not only would this mean that the Executive has the ability to expand congressional power by signing a treaty, but it would mean that foreign governments could change congressional power by abrogating a previously valid treaty—thus removing the constitutional authority from certain laws. Cato’s briefs have taken issue with such an interpretation of the Treaty Power, tracking the argument made by new Cato senior fellow (and Georgetown law professor) Nicholas Quinn Rosenkranz in his magisterial Harvard Law Review article, “Executing the Treaty Power.”

Earlier this month, the Third Circuit upheld Mrs. Bond’s conviction because the statute under which she was convicted duly implemented the Chemical Conventions Act and a lower court can’t overrule Missouri v. Holland. The court cited Cato’s brief and Nick’s article, however, and a concurrence by Judge Thomas Ambro, after also citing John Eastman’s article about the case in the Cato Supreme Court Review, specifically called on the Supreme Court to clarify the meaning of Missouri v. Holland.

The Court will have an opportunity to do so, with Paul Clement currently preparing a cert petition, which Cato will again support. In the meantime, you can listen in on a teleforum the Federalist Society is having about the case, featuring Prof. Rosenkranz (Fed Soc membership required, which costs $5-50 per year).

Justice Scalia Reads Cato’s Amicus Briefs

During Wednesday’s oral argument in Golan v. Holder (transcript here), Justice Scalia said something that was at once obvious and startling: 

It seems to me Congress either had the power to do this under the Copyright Clause or it didn’t.  I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe. I do not think a treaty can expand the powers of the Federal government. 

This proposition is obvious, because the Constitution vests Congress with limited, enumerated powers, which can only be increased by constitutional amendment, not by treaty.  But Scalia’s words were also startling because Justice Oliver Wendell Holmes said exactly the opposite almost a century ago—or at least that’s how his opinion has been read—in the canonical case of Missouri v. Holland.  We filed a brief arguing that Holmes was wrong, and we are delighted that Justice Scalia agrees.

Thanks to Tim Lee for pointing out this exchange to me before I had a chance to read the transcript and to Georgetown’s Nick Rosenkranz, the principal author of our brief.