Balkinization  

Tuesday, November 05, 2013

Our Quaint Solicitor General

Gerard N. Magliocca

Today the Supreme Court heard argument in Bond v. United States, which raises the question of whether a treaty can confer upon Congress the power to enact implementing legislation that would otherwise exceed its enumerated powers. This decision gives the Justices an opportunity to revisit Missouri v. Holland, in which Justice Holmes made something like this argument.  (Paul Clement, arguing for Bond, said that Missouri v. Holland could be distinguished, but that seems implausible.)

In response to questions from the bench about whether a treaty could give Congress a general police power, the Solicitor General said yes in theory but no in practice. Why? Because no President would propose and no Senate would ratify such a treaty.  (Basically, this is another version of the "broccoli" hypothetical for the Commerce Clause.) He added that the requirement that two-thirds of the Senate is needed to ratify a treaty provided additional protection for the reserved powers of the States.

I take issue with this last claim.  Most binding international agreements nowadays are not subject to the Treaty Clause.  Since World War II, they are often framed as congressional-executive agreements. Congressional-executive agreements are ratified just like a statute (you need a majority in Congress and a presidential signature).  NAFTA is a recent example.  Is the SG saying that treaties are on a higher legal plane than congressional-executive agreements?  Maybe that makes sense, but that would be a new distinction.  



Comments:

I believe, though am not certain, that the difference is that treaties are mutually binding (i.e., there are international legal consequences for unilateral withdrawal), while trade agreements and the like have opt-out clauses giving countries the unilateral right to withdraw from the agreement.
 

(Basically, this is another version of the "broccoli" hypothetical for the Commerce Clause.) He added that the requirement that two-thirds of the Senate is needed to ratify a treaty provided additional protection for the reserved powers of the States.FUT 14 Coins
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Because no President would propose and no Senate would ratify such a treaty. (Basically, this is another version of the "broccoli" hypothetical for the Commerce Clause.) He added that the requirement that two-thirds of the Senate is needed to ratify a treaty provided additional protection for the reserved powers of the States.lol代练价格
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