Academic journal article Missouri Law Review

Resurrecting Missouri V. Holland

Academic journal article Missouri Law Review

Resurrecting Missouri V. Holland

Article excerpt

I. INTRODUCTION

For a decision that has never been put to work, Missouri v. Holland (1) has generated a good deal of academic discussion. At one level, that shouldn't be surprising. The case supplies a clean judicial pronouncement on a question of paramount constitutional importance. At another level, however, until recently there hasn't been much to talk about. Missouri v. Holland declared a broad vision of the Treaty Power and of the national government's authority to constrain the states in furtherance of international obligations. But the federal government failed to assimilate that version of the Treaty Power. Indeed, it is only recently that the exercise of powers available under Holland has become a realistic possibility.

This brief essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably, the decision is no longer good law if it ever was.

But Holland may yet live. The key moving part here is the transformed global context. On the one hand, globalization disaggregates nation-states, facilitating the global interactivity of constituent subnational jurisdictions. (2) This creates new spaces for the states as international actors, including as parties to international agreements. These new international capacities may lessen the need for Holland-like powers in the national government, as the states become more amenable to international discipline. To the extent that international law implicates areas of exclusive subnational authority, the architecture of global society now includes suitable channels of interaction. On the other hand, the transaction costs of managing treaty relationships with multiple subnational entities argues for the maintenance of intermediary power in national governments. The discipline of subnational authorities may remain insufficient to address global imperatives. Some global issues can't wait for the perfection of the legal personality of subnational actors.

In other words, the world may need Missouri v. Holland. If Holland is to be resurrected, it probably won't be out of indigenous American concern. More likely, other actors will press the use of Holland's powers on the United States, in the way of demands lodged with the national government to bring the states into line with international undertakings. Although the national government has finessed recent situations in which a broad interpretation of the Treaty Power might have been required, it has yet to be put to the test. But it is not hard to conjure up scenarios in which the balance would tip in favor of using a treaty to trump state authority.

So time may finally be catching up to Missouri v. Holland. Globalization is generating more robust international regimes. Whether or not globalization diminishes aggregate state power, (3) it logically enlists states as agents of enforcement. Holland supplies the constitutional tool for perfecting that power in the American context. We may yet witness its use.

II. HOLLAND'S STILLBIRTH

For all its dramatic elegance and structural logic, Missouri v. Holland hasn't made much of a mark beyond the academy. Its validation of an expansive Treaty Power appears never to have been internalized by the political branches, who failed to take the Supreme Court up on its offer. This failure was not simply prudential, in the sense that the political branches consciously held the power in reserve. …

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