Air Force General Counsel Blog The chief legal officer and chief ethics official of the Department of the Air Force


Congress’ Treaty Powers: Historical Practice

In 1920, the U.S. Supreme Court in Missouri v. Holland held that the treaty power was not limited by the states’ rights limitations in the Tenth Amendment of the United States, and Congress was also not limited in passing implementing legislation.  In other words, the President and Congress, through treaties, could do what the federal government might not otherwise be able to do.  This year, the Supreme Court granted certiorari in United States v. Bond, which could mean the Holland holding about Congress’ power to draft implementing legislation could be in trouble.

Surprisingly, there has been very little discussion of the historical practice of Congress before Holland.  Rutgers Law Profesor Jean Galbraith has filled that vowed in a new article that concludes that both opponents and proponents of s strong treaty power accepted Congress's power to implement treaties under the Necessary and Proper Clause.  Here is the abstact to the article:

Historical practice strongly influences constitutional interpretation in foreign affairs law, including most questions relating to the treaty power. Yet it is strikingly absent from the debate presently pending before the U.S. Supreme Court over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause, even if this legislation would otherwise lie outside its enumerated powers. Drawing on previously unexplored sources, this piece considers the historical roots of Congress’s power to implement U.S. treaties between the Founding and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress relied on the Necessary and Proper Clause in passing legislation implementing treaties. Notably, both opponents and supporters of a strong treaty power accepted Congress’s power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed in this piece supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even where no other Article I power underlies this legislation.

Read it all here.   Hat tip to Duncan Hollis at Opinio Juris, who discuses the article here.  There is a very interesting debate about the Bond case between Rick Pildes and Nick Rosenkranz (and others!) at The Volokh Conspiracy.  Curtis Bradley offers some thoughts at the Lawfare blog.

Charles A. Blanchard
General Counsel
United States Air Force