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.