how does approving treaties balance power in the government

18 Pa. Cons. Id. Who has the power to ratify treaties in the United States? 177. 1; U.S. Const. may justly be pronounced the very definition of tyranny.46. Adopted Dec. 19, 1966, 999 U.N.T.S. 93. 75 (Alexander Hamilton), supra note 34, at 365 (stating that treaties are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign). 2332c(b)(2) (1994 & Supp. Lawson & Seidman, supra note 125, at 63. I 1996) (repealed 1998). Geofroy v. Riggs, 133 U.S. 258, 267 (1890). 36(1)(b)). 51 (James Madison), supra note 34, at 319. If Justice Holmes was correct, then the President and Senate could agree with a foreign nation to undo the checks and balances created by the people who founded our nation. Many commentators are chomping at the bit for the federal government to make or implement treaties as a way of enacting laws that the Supreme Court has otherwise held as exceeding the federal governments powers.13 As Professor Nicholas Rosenkranz noted, scholars have even suggested that the International Covenant on Civil and Political Rights14 could resuscitate the Religious Freedom Restoration Act partially invalidated in City of Boerne v. Flores15 or the Violence Against Women Act partially invalidated in United States v. Morrison.16. art. The facts of Missouri v. Holland are striking and provide a roadmap for how the federal government could use treaties to aggrandize power otherwise reserved for the states: In 1913, Congress enacted a statute to regulate the hunting of migratory birds. Three Branches of Government The Balance of Government (answers) The Balance of Government (answers) EXECUTIVE LEGISLATIVE Interprets _ laws _. It would have been absurd for the Framers to implement multiple checks and balances for creating a system of dual sovereignty, and to explicitly delineate the Presidents and Congresss powers, only to allow the Treaty Clause power to completely displace all state sovereign authority. To project strength, Jay counseled that a federal government, rather than thirteen separate state governments, was necessary to maintain security for the preservation of peace and tranquillity.49 And to avoid entanglements with other countries, Jay advised that the United States should not give foreign nations just causes of war.50 Specifically, Jay identified violations of treaties and direct violence as the two most prevalent just causes of war.51 Of course, nations also go to war for unjust or pretended causes, like military glory, ambition, or commercial motives.52 In any event, Jay rightfully explained that strength would dissuade other countries from disrupting our peace. Bond v. United States, 133 S. Ct. 978 (2013). As Thomas Jefferson explained, the treaty power must have meant to except . Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal governments authority. At the same time, our courts must scrutinize the federal governments powers to make and implement treaties. . Transit Auth., 469 U.S. 528, 55054 (1985) (discussing the role of constitutional structure and congressional legislation in preserving state interests). The people, as initial holders of their sovereignty, agree to cede some power to form society and government for their collective prosperity and security. With treaties potentially supplanting federal and state governmental authority, the President and Senate should carefully scrutinize all treaties, as a policy matter. United States v. Darby, 312 U.S. 100, 124 (1941). It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights let alone alien to our entire constitutional history and tradition to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). 75 (Alexander Hamilton), supra note 34, at 450. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.97, In the Bond litigation, the Obama Administration appears to agree that treaties cannot violate the Constitutions express prohibitions (such as those in the Bill of Rights).98, In contrast, the Administration appears to argue that the treaty power contains no subject-matter-based limitations.99 This is the predominant view in the legal academy: that there are essentially no other subject-matter limits on the Presidents power to make treaties.100 Under this majority view, which stems from Missouri v. Holland, a treaty can exercise power otherwise reserved to the states. The President therefore cannot unilaterally enter into a treaty. 135. This EssayEssay has argued that the Necessary and Proper Clause alone does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal governments powers. XYZ Affair Sovereignty, the Treaty Power, and Foreign Affairs, III. United States v. Bond, 681 F.3d 149, 151 (3d Cir. . 2. !PLEASE HELP!!! The Federalist No. And it would be doubly absurd to condition this displacement of state sovereignty on a foreign nations assent. The Court might invoke the canon of constitutional avoidance to hold that Bonds conduct is not covered by the Act as a matter of statutory interpretation, an argument Bond has pressed. 70. CQ Transcriptions, Sen. Chuck Schumer Holds a Hearing on the Nomination of Judge Sonia Sotomayor to Be an Associate Justice of the U.S. Supreme Court, Wash. Post (July 14, 2009, 4:24 PM), http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071402630.html. !PLEASE HELP! Under this view, the President could enter into a non-self-executing treaty to cede state territory, and then Congress would have the power to implement that treaty in light of war concerns. What does the judicial branch do with laws? . I, 8, art. must establish that no set of circumstances exists under which the Act would be valid.). Throughout the years, the Supreme Court has recognized Jeffersons insight that treaties should not be able to alter the Constitutions balance of power between the federal and state governments. City of Boerne v. Flores, 521 U.S. 507 (1997). 13. !PLEASE HELP! Perhaps another one of Congresss enumerated powers such as the Commerce Clause might happen to give Congress that authority. 131. Indeed, James Madison remarked that [t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . Id. 80. First, Missouri v. Holland may have turned on the international character of the regulated subject matter that is, migratory birds. United States v. Morrison, 529 U.S. 598 (2000). 179. 166. Independence, MO 64050 (alteration in original) (quoting U.S. Const. 662, 736 (1836). 111. 40. . This site is using cookies under cookie policy . II, 2) (internal quotation marks omitted). 49. In any event, there are good arguments to impose additional limits on Congresss power to implement treaties, and thus to reject Justice Holmess statement. art. 84. Approve presidential appointments. The Chemical Weapons Convention is a non-self-executing treaty, just as the Migratory Bird Treaty was in Missouri v. Holland. At the very least, the opinion should have grappled with these precedents if it was going to make broad pronouncements about Congresss ability to implement treaties. The separation of powers and federalism, therefore, are a manifestation of the Framers rejection of unchecked government power. at 152 (quoting Missouri v. Holland, 252 U.S. 416, 432 (1920)). Avena and Other Mexican Nationals (Mex. Which branch has the power to approve treaties? !PLEASE HELP! treaties and presidential appointments. . Approves treaties Approves presidential appointments Impeaches and tries federal officers Overrides a president's veto at 43031 (describing legislation and regulations implemented in compliance with the treaty agreement). But it bears mentioning that one could imagine a middle position that avoids some of the deleterious consequences of limiting the Presidents Treaty Clause power. . The Federalist No. 19. Id. 38. If no enumerated power justifies the creation or implementation of a treaty, the federal government is acting beyond its delegated authority, thus violating the sovereignty of the states and the people. !PLEASE HELP! !PLEASE HELP!!! The Framers explicitly enumerated the powers of the federal government, and all unenumerated powers were reserved to the States respectively, or to the people.117 If the states retain some sphere of sovereign authority over which the federal government has no power, then all attempts by the federal government to infringe on this sovereign state authority should be unconstitutional regardless of whether the federal government tries to do so through the Presidents Treaty Clause power or Congresss enumerated powers. 1. And Congress may have had Commerce Clause authority to implement the Treaty legislatively, at least insofar as the Treaty covered migratory birds moving interstate or between countries. One frequent objection to structural limits on the Treaty Clause power is that they do not give the federal government sufficient latitude to negotiate peace treaties with concessions.133 This objection posits that the federal government must have authority to preserve the union by getting out of war through any means and that it is absurd to think that ceding state territory is a violation of state sovereignty.134. There are critical limits on the Presidents power to make treaties: (1) two-thirds of the Senate must approve of the treaty; (2) the treaty cannot violate an independent constitutional bar; and (3) the treaty cannot disrupt our constitutional structure by giving away sovereignty reserved to the states. Id. . The Supreme Court in Medelln ruled that the President lacks constitutional authority to transform[] an international obligation arising from a non-self-executing treaty into domestic law.140 That responsibility, the Court held, falls to Congress.141 So we must consider whether there are any limits on Congresss ability to implement a treaty legislatively. Others have tried to rehabilitate Missouri v. Hollands statement about the Necessary and Proper Clause with a competing structural argument.159 According to this argument, Congress must have the power to implement treaties, or else the President could enter into agreements with foreign nations and have no power to enforce these agreements.161 This result, though, is not absurd.162 As Rosenkranz highlighted, [a]ll non-self-executing treaties rely on the subsequent acquiescence of the House of Representatives something that our treaty partners can never be certain will be forthcoming. So when a foreign nation enters into a non-self-executing treaty with the United States, there is always a possibility that the treaty will not be implemented in the United States even if Congress had the authority under the Commerce Clause or another of its enumerated powers to pass the implementing statute. The ability to impose domestic obligations on states and individuals triggers Tenth Amendment concerns about the sovereign states and their reserved powers. In other words, Congress can pass laws that give the President the resources to exercise his executive power to negotiate and make treaties, but this authority does not necessarily give Congress the power to implement a treaty already made. . 85. The president has the sole power to negotiate treaties. As Solicitor General of Texas, I had the privilege of arguing Medelln v. Texas,17 which recognized critical limits on the federal governments power to use a non-self-executing treaty to supersede state law.18, In Medelln, the United States had entered into the Vienna Convention on Consular Relations,19 a non-self-executing treaty providing that if a person detained by a foreign country so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State of such detention, and inform the [detainee] of his righ[t] to request assistance from the consul of his own state.20 The International Court of Justice, an arm of the United Nations, held that fifty-one Mexican nationals did not receive their Vienna Convention consular-notification rights before being convicted in state courts.21 The ICJ further ruled that these 51 Mexican nationals were entitled to reconsideration of their state-court convictions and sentences, notwithstanding any state procedural default rules barring defendants from raising these Vienna Convention arguments on collateral review because the issues were not raised at trial or on direct appeal.22 President George W. Bush then issued a Memorandum to the Attorney General, stating that the United States would discharge its international obligations under the ICJs ruling by having State courts give effect to the decision.23, The Court held that state procedural default rules could not be displaced by the non-self-executing Vienna Convention, the ICJs ruling, or the Presidents Memorandum.24 Medelln first ruled that the ICJs ruling was not automatically enforceable domestic law in light of the U.N. Charters structure for enforcing ICJ decisions.25 And it then clarified that the President cannot use a non-self-executing treaty to unilaterally make treaty obligations binding on domestic courts.26. Part II briefly lays out the facts in Bond v. United States, which raises many difficult issues that will be discussed in the remainder of the Essay. !PLEASE HELP! The Constitution gives each branch powers that limit the powers of the other two. .44. The Best Answer. An Ordinary Man, His Extraordinary Journey, President Harry S. Truman's White House Staff, National History Day Workshops from the National Archives, National Archives and Records Administration. at 434); Rosenkranz, supra note 13, at 187879 (noting that Missouri barely touched the question of whether an expansive executive treaty power would give Congress constitutional authority to pass enacting legislation that fell outside its enumerated powers). The people in turn formed our government. 133 S. Ct. 978 (2013) (mem.) Stat. 136. According to that professor, The necessary and proper clause originally contained expressly the power to enforce treaties but it was stricken as superfluous. Id. So when the President makes any promise that the United States will take future action that can only be undertaken by other governmental actors, the President never knows for certain whether the United States will follow through and honor this promise. the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.118. 10609; see also Medelln v. Texas, 552 U.S. 491, 50406 (2008). Assn v. Garamendi, 539 U.S. 396, 414 (2003) (noting that the President has a vast share of responsibility for the conduct of our foreign relations))) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring))). And it needed to be precisely calibrated because treaties would constitute the supreme law of the land in the United States.45 By dividing the treaty power first by reserving unenumerated powers to the states, and then by housing the federal treaty power in the executive branch with a Senate veto the Framers sought to check the use of this significant lawmaking tool. 41. Sovereignty should be the touchstone of any debate over the limits on the treaty power. Raise and provide public money and oversee its proper expenditure. HELP! Approve treaties negotiated by the executive branch. 82. Gary Lawson & Guy Seidman, The Jeffersonian Treaty Clause , 2006 U. Ill. L. Rev. (emphasis omitted) (quoting Henkin, supra note 102, at 190). on the Judiciary, 100th Cong. As with limits on the Presidents Treaty Clause power, the best arguments in favor of expansive congressional power to implement treaties involve wartime hypotheticals about peace-treaty concessions.166 Many of those concerns have already been discussed. Consequently, the Supreme Court should reverse Bonds conviction. 1996) (footnotes omitted). In these hypothetical scenarios, the President would not have simply made a promise among nations. 36. In other words, the Tenth Amendment may prohibit the President from entering into treaties regulating wholly domestic conduct, but migratory birds by their nature are not necessarily a matter of pure internal concern. Declare war. As early as 1836, the Court explained, Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.119 In 1872, the Court expanded on this point: [T]he framers of the Constitution intended that [the treaty power] should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty, if not inconsistent with the nature of our government and the relation between the States and the United States.120, So by 1890, the Court noted that the treaty power is subject to those restraints which are found in [the Constitution] against the action of the government . But Americans did not give their federal government carte blanche to create whatever laws the federal government chooses. !PLEASE HELP! . 3 (John Jay), supra note 34, at 36. Nor can treaties violate independent constitutional bars. The three branches of the U.S. government are the legislative, executive and judicial branches. Their list of treaties in force defines a treaty as an international agreement made by the President of the The Court, however, has suggested that this may not be absurd. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (quoting 10 Annals of Cong. Missouri v. Holland treated the Tenth Amendment as essentially an unenforceable ink blot172 or rather, an invisible ink blot.173 Likewise, the Reid v. Covert plurality distinguished Missouri v. Holland by citing to the case that perniciously declared that the Tenth Amendment was but a truism.174 However, the Rehnquist Courts revitalization of structural constitutional limits to federal authority in Lopez, Morrison, New York, Printz, and other cases rejects the view that this Amendment can be read out of the Constitution. Regardless of whether this is viewed as a Tenth Amendment problem or an enumerated powers dispute, the bottom line is the federal government cannot aggrandize power otherwise reserved to the states. The writers of the U.S. Constitution didn't want to put too much power into the hands of one person. This competing structural argument also assumes a doubtful premise: that the federal government must have unlimited powers to implement treaties it believes are in the public interest. 156. . Legislation that has nothing to do with a treatys subject matter would be neither necessary nor proper for carrying into Execution that treaty.144 For instance, the Chemical Weapons Convention would not give Congress the authority to enact legislation that has nothing to do with chemical weapons. 91. 5. Why did the Treaty of Paris fail to bring peace to North America? For example, if the President, with Senate approval, entered into a self-executing treaty that banned all political speech, that treaty would be invalid as contrary to the First Amendments Free Speech Clause. In observing that a President could abuse the treaty power for his personal gain if the President alone possessed this power, Hamilton stated: The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.48. More fundamentally, a non-self-executing treaty might never violate the Tenth Amendment or infringe on state sovereignty. PLEASE HELP!!! Which of the following were challenges Washington had to face as the first president? 64 (John Jay), supra note 34, at 388. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.155, And a few years later, Justice Story, writing for the Supreme Court, reasoned that the Necessary and Proper Clause did not give Congress carte blanche power to implement treaties: [A]lthough the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect.156, With these precedents on the books, Justice Holmess single line from Missouri v. Holland seems quite out of place. Apr. 45 (James Madison), supra note 34, at 289. Boos v. Barry, 485 U.S. 312, 324 (1988) (quoting Reid v. Covert, 354 U.S. 1, 16 (1957)).