Congress' Treaty-Implementing Power in Historical Practice

By Galbraith, Jean | William and Mary Law Review, October 2014 | Go to article overview

Congress' Treaty-Implementing Power in Historical Practice


Galbraith, Jean, William and Mary Law Review


Abstract

Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress's power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement treaties. Notably, both supporters and opponents of a strong treaty power accepted Congress's power to implement treaties under the Necessary and Proper Clause, even though they did so for quite different reasons. This consensus helped lead to the growing practice of treaty non-self-execution, a practice that in turn has led Congress to play an increased role in treaty implementation. The historical practice revealed here strongly supports the conclusion that Congress has the power to pass legislation implementing treaties under the Necessary and Proper Clause, even when no other Article I power underlies this legislation.

TABLE OF CONTENTS

Introduction
I.   The Current Debate Over The Treaty-Implementing
     Power
     A. Missouri v. Holland ... and Now Bond v. United States
     B. The Limits of the Current Debate
II.  The Treaty-Implementing Power In Congress From
     The Framing to Missouri v. Holland
     A. Congress's Necessary and Proper Power as a Justification
        for Treaty Non-Self-Execution
        1. The Jay Treaty Debate
        2. The Necessary and Proper Clause and Treaty
           Non-Self-Execution in the Nineteenth Century
           a. The 1815 Commercial Treaty with Great Britain
           b. The 1875 Commercial Treaty with Hawaii and Its
              Extension
     B. Legislation Otherwise Beyond Congress's Powers When
        Necessary and Proper to Implement Treaty Obligations
        1. Territorial Governance
        2. Trademark
        3. Other
     C. Treatises by the Time of Missouri v. Holland
III. Implications
Conclusion

Introduction

For a long time, it was settled law that Congress could pass legislation that would otherwise be beyond its enumerated powers in order to implement treaties. The Supreme Court in Missouri v. Holland held this in 1920, when Justice Holmes wrote that if "the treaty is valid, there can be no dispute about the validity of [the statute implementing it] as a necessary and proper means to execute the powers of the Government." (1) As the Supreme Court interpreted the reach of Congress's enumerated powers more broadly during the New Deal Era, the importance of Missouri v. Holland's holding dwindled but remained unquestioned as a doctrine of constitutional law.

This is no longer the case. Following the federalist resurgence in other areas of constitutional law, Missouri v. Holland's holding is being reexamined. Professor Nicholas Rosenkranz initiated this reconsideration, arguing in an important article that Missouri v. Holland should be overruled. (2) In his view, the text of the Necessary and Proper Clause only permits Congress to pass legislation necessary and proper for the formation of treaties, and not for their implementation. The Supreme Court considered this issue last term in Bond u. United States. (3) Although the majority of the Court disposed of the case on statutory grounds, two justices embraced Professor Rosenkranz's approach, (4) and the issue may well return in the future.

The question of Congress's power to implement treaties under the Necessary and Proper Clause thus joins two other important treaty power issues as the subject of constitutional controversy. One issue is the extent to which treaty provisions are self-executing or non-self-executing. …

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