Congressional Implementation of Treaties

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Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

When a treaty provision requires implementing legislation or appropriation of funds to carry out the United States’ obligations, the task of providing that legislation falls to Congress.1 In the early years of constitutional practice, debate arose over whether Congress was obligated—rather than simply empowered—to enact legislation implementing non-self-executing treaty provisions into domestic law.2 But the issue has not been resolved in any definitive way.3

By contrast, the Supreme Court did address the scope of Congress’s power to enact legislation implementing a treaty in a 1920 case. In Missouri v. Holland,4 the Supreme Court considered a constitutional challenge to a federal statute that implemented a treaty prohibiting the killing, capturing, or selling of certain birds that traveled between the United States and Canada.5 In the preceding decade, two federal district courts had held that similar statutes enacted prior to the treaty violated the Tenth Amendment because they infringed on the reserved powers of the states to control natural resources within their borders.6 But the Holland Court determined that, even if those district court decisions were correct, their reasoning no longer applied once the United States concluded a valid migratory bird treaty.7 In an opinion authored by Justice Oliver Wendell Holmes, the Holland Court concluded that the federal government can use the treaty power to regulate matters that the Tenth Amendment otherwise might reserve to the states.8 And if the treaty itself is constitutional, the Holland Court held, Congress has the power under the Necessary and Proper Clause9 to enact legislation implementing the treaty into domestic law of the United States without restraint by the Tenth Amendment.10

Some legal commentators and jurists have questioned aspects of the Justice Holmes’s reasoning in Holland.11 Some of Holland's critics contend that the decision gives the federal government too broad a power to legislate in areas reserved to the states, especially when coupled with twentieth century changes in international lawmaking that have expanded the types of issues addressed in treaties.12 Others argue that a combined reading of the Necessary and Proper Clause and the Treaty Clause only permits Congress to pass laws necessary to make treaties, not to implement them, as Justice Holmes reasoned.13 Under this view, Congress could use the Necessary and Proper Clause to, for example, appropriate funds for U.S. diplomats to engage in overseas treaty negotiations, but Congress must rely on its other Article I powers to implement treaties that have been signed and ratified.14 Other legal scholars respond to these critiques by contending that the power to make treaties is hollow without the power to implement them,15 that political and structural checks safeguard federalism,16 and that Holland comports with the Constitution’s text and historical practice.17

As the academic debate continues, the Supreme Court has not overturned Holland's holding related to Congress’s power to implement treaties.18 Rather, the Court has sometimes discussed it favorably.19 Nevertheless, principles of federalism embodied in the Tenth Amendment continue to influence constitutional challenges to U.S. treaties and their implementing statutes, including in the 2014 Supreme Court decision, Bond v. United States.20

Bond concerned a criminal prosecution arising from a case of “romantic jealousy” when a jilted spouse spread toxic chemicals on the mailbox of a woman with whom her husband had an affair.21 Although the victim only suffered a minor thumb burn, the United States brought criminal charges under the Chemical Weapons Convention Implementation Act of 1998—a federal statute that implemented a multilateral treaty prohibiting the use of chemical weapons.22

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, div. I, tit. II, § 201(a), 112 Stat. 2681–856, 2681–866 (codified at 22 U.S.C. § 6701 et seq.); Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction art. 1, Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 317. The accused asserted that the Tenth Amendment reserved the power to prosecute her “purely local” crime to the states, and she asked the Court to overturn or limit Holland's holding on the relationship between treaties and the Tenth Amendment.23

A majority in Bond declined to revisit Holland's interpretation of the Tenth Amendment,24 but the Bond Court ruled in the accused’s favor based on principles of statutory interpretation.25 When construing a statute interpreting a treaty, Bond explained, “it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute” 26 Applying these principles through a presumption that Congress did not intend to intrude on areas of traditional state authority, the Bond Court held that the Chemical Weapons Convention Implementation Act did not apply to the jilted spouse’s actions.27 In other words, the majority in Bond did not disturb Holland's conclusion that the Tenth Amendment does not limit Congress’s power to enact legislation implementing treaties, but Bond did hold that principles of federalism reflected in the Tenth Amendment may dictate how courts interpret such implementing statutes.28

1: See Medellín v. Texas, 552 U.S. 491, 525–26 (2008). See also ArtII.S2.C2.1.4 Self-Executing and Non-Self-Executing Treaties (discussing Congress’s role in implementing non-self-executing treaties).
2: Whereas Alexander Hamilton argued that the House of Representatives was obligated to appropriate funds for the Jay Treaty, James Madison, then a Member of the House, and others disagreed. Compare Enclosure to Letter from Alexander Hamilton to George Washington (Mar. 29, 1796), in 20 Papers of Alexander Hamilton 98 (Harold C. Syrett ed., 1974) ( “[T]he [H]ouse of [R]epresentatives have no moral power to refuse the execution of a treaty, which is not contrary to the [C]onstitution, because it pledges the public faith, and have no legal power to refuse its execution because it is a law—until at least it ceases to be a law by a regular act of revocation of the competent authority.” ), with 5 Annals of Cong. 493–94 (1796) (statement of Rep. Madison) ( “[T]his House, in its Legislative capacity, must exercise its reason; it must deliberate; for deliberation is implied in legislation. If it must carry all Treaties into effect, . . . it would be the mere instrument of the will of another department, and would have no will of its own.” ); 5 Annals of Cong. 771 (1796) (proposed resolution of Rep. William Blount) ( “[W]hen a Treaty stipulates regulations on any of the subjects submitted by the Constitution to the power of Congress, it must depend, for its execution, as to such stipulations, on a law or laws to be passed by Congress. And it is the Constitutional right and duty of the House of Representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such Treaty into effect, and to determine and act thereon, as, in their judgment, may be most conducive to the public good.” ).
3: See Louis Henkin, Foreign Affairs and the U.S. Constitution 205 (2d ed. 1996).
4: 252 U.S. 416 (1920).
5: See Migratory Bird Treaty Act, ch. 128, 40 Stat. 755 (1918); Convention for the Protection of Migratory Birds art. VIII, Aug. 16, 1916, U.S.-Gr. Brit., 39 Stat. 1702.
6: United States v. McCullagh, 221 F. 288, 295–96 (D. Kan. 1915); United States v. Shauver, 214 F. 154, 160 (E.D. Ark. 1914).
7: See Holland, 252 U.S. at 433.
8: See id at 433–34 (concluding that the “treaty in question does not contravene any prohibitory words to be found in the Constitution” and is not “forbidden by some invisible radiation from the general terms of the Tenth Amendment” ).
9: See U.S. Const. art. I, § 8. See also ArtI.S8.C18.1 Overview of Necessary and Proper Clause (analyzing the Necessary and Proper Clause).
10: See Holland, 252 U.S. at 432 ( “If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.” ). Accord Neely v. Henkel, 180 U.S. 109, 121 (1901) ( “The power of Congress to make all laws necessary and proper . . . includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.” ).
11: See Bond v. United States, 572 U.S. 844, 873 (2014) (Scalia, J., concurring in the judgment joined by Thomas, J.) (describing Holland's interpretation of the Necessary and Proper Clause as consisting of an “unreasoned and citation-less sentence” that is unsupported by the Constitution’s text or structure); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005) (arguing that Holland's interpretation of the Necessary and Proper Clause “is wrong and the case should be overruled” ). See also ArtII.S2.C2.1.9 Effect of Treaties on the Constitution, at n.1 (discussing subsequent Supreme Court decisions responding to questions raised in Holland concerning the Supremacy Clause). In the 1950s, there was an effort, led by Senator John Bricker of Ohio, to limit the scope of the treaty power as described in Holland through a constitutional amendment. One version of the proposed amendment, which became known as the “Bricker Amendment,” would have provided that a “treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.” See S. Comm. on the Judiciary, 83d Cong., Proposals to Amend the Treaty-Making Provisions of the Constitution: Views of Deans and Professors of Law 3 (Comm. Print 1953). No version of the Bricker Amendment was ever adopted.
12: See, e.g., Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 433 (1998); Curtis A. Bradley, The Treaty Power and American Federalism, Part II, 99 Mich. L. Rev. 98, 98–99 (2000); John C. Eastman, Will Mrs. Bond Topple Missouri v. Holland?, Cato Sup. Ct. Rev. 185, 202 (2010–2011). For discussion of changes in international treaty practice, see ArtII.S2.C2.1.3 Scope of Treaty-Making Power.
13: See, e.g., Bond v. United States, 572 U.S. 844, 874–76 (2014) (Scalia, J., concurring in the judgment joined by Thomas, J.) ( “[A] power to help the President make treaties is not a power to implement treaties already made.” ); Rosenkranz, supra note 11, at 1882 ( “The power granted to Congress is emphatically not the power to make laws for carrying into execution ‘the treaty power,’ let alone the power to make laws for carrying into execution ‘all treaties.’ Rather, on the face of the conjoined text, Congress has power ‘To make all Laws which shall be necessary and proper for carrying into Execution . . . [the] Power . . . to make Treaties.’” ) (alterations in original).
14: See Bond, 572 U.S. at 876 (Scalia, J., concurring in the judgment joined by Thomas, J.) ( “Once a treaty has been made, Congress’s power to do what is ‘necessary and proper’ to assist the making of treaties drops out of the picture. To legislate compliance with the United States’ treaty obligations, Congress must rely upon its independent (though quite robust) Article I, § 8, powers.” ); Rosenkranz, supra note 11, at 1882–85 (discussing the scope of legislation Congress could pass under a more restrictive view of the Necessary and Proper Clause and its relationship to the Treaty Clause).
15: See, e.g., Edward T. Swaine, Putting Missouri v. Holland on the Map, 73 Mo. L. Rev. 1007, 1012–18 (2008) (critiquing the view that Congress has the power to pass legislation necessary to make treaties but not to enforce or implement them); Michael D. Ramsey, Congress’s Limited Power to Enforce Treaties, 90 Notre Dame L. Rev. 1539, 1542–43 (2015) (contending that the power to make treaties includes the power to enforce them “because absent reliable methods of enforcement, the power to make treaties as a practical matter would be greatly impaired” ).
16: See, e.g., David Sloss, International Agreements and the Political Safeguards of Federalism, 55 Stan. L. Rev. 1963, 1964 (2003); Oona A. Hathaway et al., The Treaty Power: Its History, Scope, and Limits, 98 Cornell L. Rev. 239, 324–26 (2013).
17: See, e.g., David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1313–15 (2000).
18: See Bond, 572 U.S. at 855–56 (declining to revisit Holland or decide that a prosecution under legislation implementing a treaty was not “a necessary and proper means of executing the National Government’s power to make treaties” ).
19: See United States v. Lara, 541 U.S. 193, 201 (2004) ( “[A]s Justice Holmes pointed out, treaties made pursuant to [the treaty] power can authorize Congress to deal with ‘matters’ with which otherwise ‘Congress could not deal.’” ) (quoting Missouri v. Holland, 252 U.S. 416, 433 (1920)); Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion) ( “To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.” ).
20: 572 U.S. 844.
21: See Id. at 861.
22: Chemical Weapons Convention Implementation Act of 1998, Pub. L. No.
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, div. I, tit. II, § 201(a), 112 Stat. 2681–856, 2681–866 (codified at 22 U.S.C. § 6701 et seq.); Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction art. 1, Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 317.
23: Bond, 572 U.S. at 848.
24: See id. at 855–66. Justice Scalia and Justice Thomas criticized Holland and argued that the Supreme Court should depart from its interpretation of congressional power to enact legislation that is necessary and proper to implement treaties. See Id. at 873–81 (Scalia, J., concurring in the judgment joined by Thomas, J.).
25: See id. at 859.
26: Id. at 855–60.
27: See id.
28: Accord William S. Dodge, Bond v. United States and Congress’s Role in Implementing Treaties, 108 AJIL Unbound 86, 87 (2014) ( “The central holding of Bond is that statutes implementing treaties are not exceptions to the rules of statutory interpretation that the Supreme Court has developed to protect federalism.” ).