My new post on SSRN is Congress' Limited Power to Enforce Treaties (Notre Dame Law Review, forthcoming 2015). This is my contribution to Notre Dame's outstanding recent symposium "The Treaty Power after Bond v. United States: Interpretive and Constitutional Constraints" (also featuring Professors Duncan Hollis, Saikrishna Prakash, Julian Ku, David Sloss, Edward Swaine, Roger Alford, Paul Stephan and Ingrid Wuerth, plus super-attorney Paul Clement). Here is the abstract:
This essay focuses on Justice Scalia's concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Second, Scalia’s structural policy concerns about effectively unlimited congressional power are nonetheless partly justified to the extent the Court substantially defers to Congress’ claims about what action is necessary to enforce a treaty.
Third, therefore, courts should not defer to Congress in this matter. Although Congress has power to pass laws necessary and proper to enforce treaties, Congress must use this power in ways that can be shown to be necessary and proper. In particular, review should occur on two dimensions. Courts should make an independent assessment of the meaning of the treaty, including employing a presumption that the treaty does not affect purely domestic matters. Courts should also make an independent assessment of the necessity and propriety of Congress’ legislation, prominently including in this assessment whether enforcement of the treaty is required to be done at the federal rather than the state level.
As an illustration, application of this approach in Bond v. United States would find the legislation (as applied to Bond) unconstitutional, both because the Chemical Weapons Convention did not reach Bond’s conduct and because, even if it did, state regulation was adequate to assume U.S. compliance with the Convention. As a result, although Congress has power to enforce treaties (contrary to Justice Scalia’s view), its power is sufficiently limited that it does not pose an undue threat to federalism.
The basic ideas originated in my essay for Constitution Daily last year, see here.
Posted at 6:02 AM