Although the government succeeded in persuading a majority of the Court that it has the power to withdraw certain works from the public domain, it relied solely on the Constitution’s Copyright Clause to do so — even though the impetus for the legislation was a trade agreement that amended the Berne Convention for the Protection of Literary and Artistic Works. This development is significant because the government had been implying — and its amici stating explicitly — an alternative ground for Congress’s authority to do what it did: that the “re‐copyrighting” law was a necessary and proper means of accomplishing the executive power to make treaties.
That treaty power argument was not completely out of left field, because the ruling in Missouri v. Holland, an obscure 1920 case concerning the Migratory Bird Treaty Act between the US and Canada, has long been interpreted to suggest that Congress’s powers can indeed grow when necessary to implement a duly ratified treaty. According to the conventional gloss on Justice Oliver Wendell Holmes’s five‐page opinion in Holland, even if Congress has no enumerated power to pass, say, general criminal laws, Congress’s power expands to allow such legislation if, say, a treaty with France demands that we pass it. Thus, foreign nations and the executive branch are given the power to change one of the most hotly debated and carefully crafted sections of the Constitution, the scope of Article I congressional power.
This bizarre situation led me to join Georgetown law professor Nicholas Quinn Rosenkranz in filing an amicus brief [PDF] in Golan on behalf of the Cato Institute, highlighting the problems with an expansive interpretation of the treaty power (an idea that Professor Rosenkranz had illustrated in a previous article).
We argued that, as a matter of constitutional structure, history and logic, a treaty cannot increase Congress’s legislative powers. Not only is the power to “make treaties” distinct from the power to execute treaties already made, but such an expansive interpretation of the treaty power would allow Congress and the executive to circumvent the Article V amendment process. In short, Holland is a structural and doctrinal anomaly in tension with other precedent and based on a misreading of constitutional history. It should be overruled or at least reinterpreted.
In any event, whether in response to our brief or under the shear force of Justice Scalia’s questioning, the government gave up on the treaty power track in one fell swoop during the Golan oral argument [PDF]: