At Dorf on Law, Mike Dorf has an interesting set of comments on Ted Cruz's article Limits of the Treaty Power in the Harvard Law Review Forum (noted here). From a core part of the analysis:
… [T]he Supreme Court had basically two options with respect to the Commerce Clause: One, favored by the liberals, was to leave the protection of state sovereignty to what Herbert Wechsler famously called the "political safeguards of federalism"–i.e., all of the ways in which the structure of the federal government gives a voice to state interests. The other approach, favored by conservatives, was to articulate formal tests for the outer boundaries of the Commerce Power to ensure that while Congress can do almost anything under that power, there are a few things it cannot do.
The same appears to be true of the Treaty Power. Here, one might think that the liberals' argument is even stronger, because the political safeguards of federalism are stronger here: in particular, it takes 67 votes in the Senate–the body designed to look after the states' interests–to enact a treaty. Hence, there's no serious likelihood that the Senate will run roughshod over states' rights by signing sham treaties with Lichtenstein. If one is inclined to identify a formal limit in the same way that the conservatives do with respect to the Commerce Clause, it might be something like the sham treaty limit and the other federalism-based limits that the Court enforces with respect to other powers–such as the Obamacare case's prohibition on mandates under the Commerce Clause and the prohibition on Congress telling a state where to locate its capital. The Treaty Power would be very broad but not infinitely broad.
I agree, as far as this goes, and ironically the argument for what Professor Dorf calls the liberal position is much stronger under an originalist view. Prior to the Seventeenth Amendment, it is especially implausible that a treaty greatly infringing state power could have passed the Senate. Thus it is unlikely that the 1787-88 framers saw any need for implicit substantive limits on the treaty making power, because the composition of the Senate effected a structural limit.
But there is another dimension to the matter – one that is very much in play in the Bond case. Treaties are often ambiguous, aspirational or open-ended — intentionally (for diplomatic reasons) or unintentionally (from the nature of language). An aggressive Congress, particularly if operating under a broad interpretation of its necessary and proper powers, may find considerable space between what state-protective Senators thought a treaty said and what creative lawyers can claim a treaty says. (That's particularly true if one's approach to treaty interpretation is not originalist).
Thus there is a material difference between treaty making, where the two-thirds requirement is a considerable check, and treaty implementation, where it isn't. For this reason, I think it is more appropriate for the Court to closely scrutinize implementation, even where the treaty itself is not subject to constitutional objection.
As I have suggested in connection with the Bond case, there are at least two complementary ways to do this. One is to read ambiguous treaties narrowly where they implicate state power. Another is to read Congress' treaty implementation power narrowly where it implicates state power, so that it comes into play only where states are unwilling or unable to enforce the treaty itself. The combination provides a middle ground, both in Bond and generally, that is more state-protective that what Professor Dorf wants, but less restrictive (and in my view more consistent with the Constitution's text) than what Senator Cruz proposes.
Posted at 6:05 AM