While legal experts continue debating the intellectual property ramifications of the Supreme Court's decision in Golan v. Holder, I want to focus on the dog that did not bark: the treaty power argument that the government abandoned and the Court ultimately ignored.
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]:
JUSTICE SCALIA: 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. I mean, this is either okay under the copyright clause or it is not.
SOLICITOR GENERAL VERRILLI: We completely —
JUSTICE SCALIA: It would be nice to know the reason for it, but you would still have to establish that it's within the power of the Federal government —
SOLICITOR GENERAL VERRILLI: We completely agreement with that, Justice Scalia.
That is a positive development, but it is even more remarkable that the Golan dissent likewise failed to reach the Holland issue, even though it logically should have. Since Justice Breyer, joined by Justice Alito, thought that the Copyright Clause did not give Congress the power to pass the relevant statute, he had to see whether there was other authority for it — namely, the treaty power. However, there is no discussion of this issue, or even a citation to Holland. Instead, Justice Breyer simply concluded that "the [Berne] Convention cannot provide the statute with a constitutionally sufficient justification that is otherwise lacking."
So where does that leave us? For one thing, the continuing expansive interpretation of Holland is surely in doubt. We need look no further than the the above exchange between Justice Scalia and Solicitor General Verrilli to exhibit such skepticism. Also, former solicitor general Paul Clement argued against the treaty power in the remanded case of Bond v. US — a bizarre case involving a chemical weapons treaty that the Supreme Court unanimously sent back to the US Court of Appeals for the Third Circuit last year. At oral argument, the Court seemed intrigued by, and even sympathetic to, Clement's position that the government lacked the power to use the implementation of an international treaty to prosecute the defendant for what was effectively assault.
Just as Bond may make a return visit to the Supreme Court, the Court's ruling in Golan may have provided a glimpse of where the Court will go with the treaty power when it — or some other appropriate case — gets there.