Hey, remember when we were discussing the Bundy ranch situation, and Elm was arguing that the federal government can't use the Treaty Power to do anything that isn't already an enumerated power in the Constitution, and I was arguing that while I agree the Treaty Power can't be used to violate an express
prohibition, I wasn't convinced it was limited to only expressly enumerated powers?
Elmarnieh wrote:
RangerDave wrote:
Elmarnieh wrote:
RangerDave wrote:
So, your argument is that the Federal government cannot agree to do something by treaty that it is not expressly empowered to do under the Constitution? I'm not sure I agree.
How can you not agree. It states this very such thing in the Constitution when it talks about treaties.
It states what thing when it talks about treaties? All the Constitution says is that the President has the power to enter into treaties (with the advice and consent of the Senate). And, incidentally, the Supreme Court rejected your argument in 1920 (See,
Missouri v. Holland)
Elmarnieh wrote:
Logically how can entity that gets authority from 1 source (the states) grant itself additional power from that source without that source's consent?
That's not what's happening. The states/people granted to the federal government the power to enter into treaties and to make war, both of which often involve the acquisition and/or loss of territory. The Louisiana Purchase was an exercise of the treaty power, and the acquisition of Nevada was an exercise of both the treaty power and the war-making power.
Again treaties can't have the federal government do anything it isn't already empowered to do so - so sayeth the part of the Constitution that grants the treaty power.
Well, it seems Justice Scalia agrees with Elm:
Several of my co-bloggers (Eugene, Jonathan, and Ilya) have already noted today’s opinion in Bond v. United States. As they have explained, Ms. Bond was prosecuted for violation of the Chemical Weapons Convention Implementation Act. She argued (1) that the statute did not reach her conduct; and, in the alternative, (2) if the statute does reach her conduct, then Congress had no constitutional power to enact it. Six justices agreed with her on the (relatively uninteresting) first proposition, and the other three justices agreed with her on the (extremely important) second proposition.
My co-bloggers have well explained the majority opinion and the Chief’s seeming predilection for avoiding constitutional questions with (dubious?) statutory interpretations. I will just add a few words about Justice Scalia’s concurrence, which Justice Thomas joined. In my view, it is extremely important, and exactly right.
For Justice Scalia, it is crystal clear that the statute reaches Ms. Bond’s conduct. “Since the Act is clear, the real question this case presents is whether the Act is constitutional as applied to petitioner.”
As to that question, the government argued that because the United States had entered into a treaty concerning chemical weapons, Congress automatically has the power to enact a statute on this topic, even if it would have lacked this power otherwise. It argued, in other words, that a treaty can increase the legislative power of Congress. And indeed, in 1920, the Supreme Court, per Justice Holmes, seemed to say exactly that. Holmes wrote: “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.” Missouri v. Holland, 252 U.S. 416, 432 (1920).
...Justice Scalia writes: “Petitioner and her amici press us to consider whether there is anything to this ipse dixit. The Constitution’s text and structure show that there is not.” He is exactly right, and his opinion is a masterpiece.
In short, as Scalia explains:
"[A] power to help the President make treaties is not a power to implement treaties already made. See generally Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867 (2005). Once a treaty has been made, Congress’s power to do what is “necessary and proper” to assist the making of treaties drops out of the picture. To legislate compliance with the United States’ treaty obligations, Congress must rely upon its independent (though quite robust) Article I, § 8, powers."
...Justice Scalia begins with the constitutional axiom that Congress has limited and enumerated powers, and then explains how the government’s argument would constitute a “loophole” to that fundamental principle. If the government is right, “then the possibilities of what the Federal Government may accomplish, with the right treaty in hand, are endless and hardly farfetched …. It could begin, as some scholars have suggested, with abrogation of this Court’s constitutional rulings.”
...But this is, as Scalia says, “the least of the problem.” The government’s position “places Congress only one treaty away from acquiring a general police power.” But countless canonical opinions insist that Congress can have no such power.
...Justice Scalia’s opinion is a masterpiece. Unfortunately, he was only writing for himself and Justice Thomas. However, it is important to note that the other seven expressed no view about whether a treaty can increase the legislative power of Congress. (There is actually a hint that Justice Alito may agree with Justices Scalia and Thomas; although he did not join Justice Scalia’s concurrence, he did sign onto Part III of of Justice Thomas’s concurrence, which says that Missouri v. Holland “upheld a statute implementing [a] treaty based on an improperly broad view of the Necessary and Proper Clause.”) So Justice Scalia’s powerful opinion went unanswered, and today’s score on this point is 2-0. Missouri v. Holland remains the law of the land, but in a proper case, it may yet be overruled.
The majority opinion didn't reach this Constitutional question, so this is just Scalia (and Thomas) speaking, not the official position of the Court (yet), but still...score one for our resident Muppet!
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