Last week I noted the Supreme Court’s decision in Bond v. United States, which appeared to clear the way for a federalism-based challenge to Congress’ power to implement treaties. Today a new filing a different case, Golan v. Holder, puts that issue in front of the Supreme Court for the 2011 Term.
Golan, which the Court will hear in the Fall, involves a challenge to a congressional statute granting copyright protection to works previously in the public domain. In defending the statute, the U.S. government has relied heavily on Congress’ interest in implementing international agreements to which the U.S. is a party.
In today’s filing, the Cato Institute’s Ilya Shapiro and Georgetown law professor Nicholas Quinn Rosenkranz contend, relying heavily on originalist arguments, that an international agreement can’t expand Congress’ constitutional power. Thus if Congress otherwise lacks power under the Constitution’s copyright clause and the first amendment to pass the statute in question, Congress can't claim additional power from the need to implement international obligations. In making this argument, the authors directly attack the Court’s 1920 decision in Missouri v. Holland, which (as I described last week) is also implicated in the Bond case. Their brief draws heavily on this 2005 Harvard Law Review article by Professor Rosenkranz, a must-read for anyone interested in the subject. A summary of the brief by Ilya Shapiro is here.
Golan doesn’t present the issue as squarely as Bond, but it further shows that the issue is gaining interest. Incidentally, the lower court decision in Bond described the question of Congress’ power to implement treaties as an unsettled one (despite Missouri v. Holland), and among other things cited Professor Rosenkranz’s article (in note 4) as evidence of doubts about the extent of Congress’ power. I expect we'll be hearing a good bit more on this, and it seems a timely area for further originalist exploration.
Posted at 4:00 PM