The Treaty Power: Its History, Scope, and Limits (with Spencer Amdur, Celia Choy, et al.), 98 Cornell Law Review 239 (2013)
This Article examines the scope of the treaty power under the U.S. Constitution.
A recent challenge in the courts has revived a debate over the reach
and limits of the federal government’s treaty power that dates to the Founding.
This Article begins by placing today’s debate into historical perspective—
examining the understanding of the treaty power from the time of the
Founding, through the Supreme Court’s landmark decision in 1920 in Missouri
v. Holland , and up to the present. It then provides a systematic account
of the actual and potential court-enforced limits on the treaty power—
including affirmative constitutional limits, limits on implementing legislation,
and limits on the scope of the Article II treaty power itself. In the process,
the Article develops a detailed pretext test that courts could use to assess
whether the federal government has exceeded its Article II authority. Yet even
this elaborated pretext test is unlikely to be used to invalidate many treaties.
Hence the most important protection against abuse of the treaty power comes
not from the courts but from structural, political, and diplomatic checks on
the exercise of the power itself—checks that this Article describes and assesses.
These checks provide for “top-down” and “bottom-up” federalism accommodation.
The result is a flexible system in which the states and the federal
government work together to preserve the boundary between their respective
areas of sovereignty. The Article concludes that this flexible system of accommodation
is likely to be more effective than any court-enforced restraint at
protecting against abuse of the federal treaty power.
Date of Authorship for this Version
Hathaway, Oona A.; Amdur, Spencer; Choy, Celia; Deger-Sen, Samir; Paredes, John; Pei, Sally; and Proctor, Haley Nix, "The Treaty Power: Its History, Scope, and Limits" (2013). Faculty Scholarship Series. 4823.