Over at Opinio Juris, Peter Spiro notes that the Court’s decision Thursday in Bond v. United States may clear the way for revisiting Missouri v. Holland. Holland is the 1920 case that held Congress could legislate to implement a treaty even with respect to subjects not directly included within Congress’ Article I, Section 8 powers. In Bond, the Court unanimously found the petitioner had standing to raise a claim potentially challenging Holland, and sent the case back to the lower courts. (Here is Lyle Denniston’s excellent analysis at SCOTUSblog).
Holland has drawn sharp criticism from originalists, and Justice Holmes’ opinion in the case is openly non-originalist. If Holland-based arguments do get a hearing, I’d expect substantial interest to be shown in the original understanding of the treaty clause. Notably, Justice Kennedy’s opinion in Bond warmly invokes the framers’ federalism values.
Peter’s outstanding article on Holland is available here. My defense of the case’s result on originalist/textualist grounds is here (Missouri v. Holland and Historical Textualism, 73 Missouri Law Review 970 (2008)). And those interested in the case shouldn’t miss Edward Swaine’s Putting Missouri v. Holland on the Map, available here (also in the Missouri Law Review – all of the papers were part of a great conference on the case organized by Opinio Juris’ Peggy McGuinness).
Posted at 11:30 PM