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Michigan Law Review


For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from that over internal affairs."1 For a variety of reasons, however, the distinction between domestic and foreign affairs has been eroding in recent years, and this trend is likely to continue.2 As a result, there will be an increasing need to reexamine the differential treatment of federal foreign affairs powers.

This Article reexamines one example of such differential treatment - the purported immunity of the treaty power from federalism limitations. The Constitution provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." 3 Since the adoption of the Constitution, the President has exercised this power to commit the United States to hundreds of international obligations. The President also has committed the United States to thousands of additional obligations without going through the Article II process, by means of so-called "executive agreements."4 The treaties entered into by the President are deemed by the Constitution to be part of the supreme law of the land, 5 and the Supreme Court has construed this supremacy to ex-tend to executive agreements as well. 6 This means, among other things, that treaties and executive agreements preempt inconsistent state law.7 Because of the supremacy of treaty law over state law, the treaty power implicates important issues concerning this country's federal system of government.

A central principle underlying American federalism, often recited by the Supreme Court, is that the national government is one of limited, enumerated powers.8 A corollary of this principle is that when the federal government makes supreme federal law, it is restrained in what it can do either by inherent limits in the scope of its delegated powers, or by the Tenth Amendment's reservation of powers to the states, or both.9 To be sure, these restraints are not nearly as strong as they once were, and the Supreme Court's willingness to police these restraints has varied throughout U.S. history.10 Nevertheless, neither the Court nor most commentators deny the existence of such restraints. Even in the Garcia decision, the low point of judicial protection of federalism, the Court acknowledged that there are "limitation[ s] on federal authority inherent in the delegated nature of Congress' Article I powers" and that "[t]he States unquestionably do 'retai[n] a significant measure of sovereign authority.' "11

This is not the conventional wisdom, however, with respect to the treaty power. Although the treaty power is understood as being subject to the individual rights protections of the Constitution,12 and perhaps also to separation of powers restrictions,13 treaties and executive agreements are not thought to be limited either by subject matter or by the Tenth Amendment's reservation of powers to the states. As Professor Lori Damrosch has stated, "our constitutional law is clear: the treaty-makers may make supreme law binding on the states as to any subject, and notions of states' rights should not be asserted as impediments to the full implementation of treaty obligations." 14 For the sake of convenience, I will refer to this conventional wisdom as the "nationalist view." The nationalist view has been endorsed by a number of prominent foreign affairs commentators,15 as well as by the influential Restatement (Third) of the Foreign Relations Law of the United States.16

As suggested by Professor Damrosch, the nationalist view of the treaty power has two components. First, largely on _the basis of the Supreme Court's decision in Missouri v. Holland,17 it generally is understood today that "the Tenth Amendment, reserving to the several States the powers not delegated to the United States, does not limit the power to make treaties or other agreements."18 Second, while it "was once widely accepted" that treaties could be made only with respect to matters of "international concern,"19 most commentators today either disagree with such a limitation or assume that it is insignificant, given that most matters upon which treaties are likely to be concluded can plausibly be characterized as of international concern.20

In this Article, I question the nationalist view. As I explain, the two components of the nationalist view have developed in isolation. While either component might seem relatively unproblematic by itself, when considered together they violate the principle of limited, enumerated powers. The treaty power in our Constitution is a power to make supreme federal law. If such law can be made on any subject, without regard to the rights of the states, then the treaty power gives the federal government essentially plenary power vis-a-vis the states. Such plenary power, however, is exactly what American federalism denies. This inconsistency between the nationalist view and American federalism is particularly significant today, in light of the Supreme Court's renewed commitment to protecting federalism and the rapidly expanding nature of this country's treaty commitments.21

I should make clear at the outset the nature of my argument. I am not defending here the value of federalism, or judicial review of federalism, subjects that have generated enormous literature.22 My argument is simply that if federalism is to be the subject of judicial protection - as the current Supreme Court appears to believe - there is no justification for giving the treaty power special immunity from such protection. My argument is one against treaty power exceptionalism, not necessarily one in favor of federalism. In addition, I am not assuming here the legitimacy of any particular method of constitutional interpretation, such as originalism or textualism. Instead, I consider all the standard interpretive materials, including text, history, structure, and changed circumstances, and I conclude that none of these materials justifies giving the treaty power special immunity from federalism limitations.

This Article proceeds in five parts. Part I describes why the relationship between the treaty power and American federalism is particularly significant today, in light of recent changes in the nature of treaty-making, as well as the recent federalism jurisprudence of the Supreme Court. Part II examines materials from the Founding period and the nineteenth century and concludes that, contrary to claims by its proponents, the nationalist view lacks substantial support in history. Part ID recounts how the nationalist view became orthodoxy, beginning with the Supreme Court's 1920 decision in Holland and followed by the eventual academic repudiation of a subject matter limitation on the treaty power. Part IV then sets forth a critique of the nationalist view. In particular, it questions the three principal justifications for the nationalist view: that the treaty power is immune from federalism restrictions because that power has been exclusively delegated to the federal government; that federalism limitations are unnecessary because the political process is sufficient to protect states' rights; and that imposing federalism limitations on the treaty power would unduly interfere with the ability of the federal government to speak with one voice in foreign affairs. Part V argues that, while it may not be feasible to limit the treaty power by subject matter, this power should at least be subject to the same federalism limitations as Congress's legislative powers. To the extent that this conclusion would require overruling Holland, this Part argues that the justifications for stare decisis are weak in this context, given the substantial changes in both the nature of treaty-making and the scope of permissible federal legislation.