Thursday, January 09, 2014

Ted Cruz on the Treaty Power

by Mike Dorf

The Harvard Law Review has just published an essay by Senator Ted Cruz in which he argues for a narrow interpretation of the scope of the Treaty Power.  The essay reveals that Cruz was only play-acting when he took to the Senate floor in a futile effort to derail the Affordable Care Act and inexplicably declared that the central message of Dr. Seuss's Green Eggs and Ham is "never try anything new."  By contrast, the HLR essay is scholarly and thoughtful. But it nonetheless confirms the picture of Cruz as a reactionary.

The ostensible hook for the essay is a case currently pending before the Supreme Court, Bond v. United States.  The case presents the question of whether the Chemical Weapons Convention Implementation Act reaches attempted poisoning using non-lethal doses of readily available toxins and, if so, whether the Act as so applied exceeds the scope of the Treaty Power.  When the case was argued a couple of months ago, it appeared to split the Justices ideologically, with the liberals wanting to sustain broad federal power and the conservatives wanting to limit such power.  The twist is that Justice Breyer appeared inclined to construe the Act as not reaching Bond's conduct, and thus to avoid the constitutional question.  If I had to bet on the outcome, I'd say that such a compromise, statutory decision, is most likely, but I wouldn't bet a lot of money.

Enter Senator Cruz, who thinks that if the Act is construed to reach Bond's attempted poisoning then it exceeds the scope of congressional authority.  To get to that result, Cruz says that Missouri v. Holland--an elegant 1920 opinion by Justice Holmes--should be overruled.  In Holland, the Court sustained the power of Congress to forbid the killing of certain migratory birds.  At the time, it was assumed that the Commerce Power would not authorize Congress to enact the statute at issue, but the statute was passed to implement a treaty with Canada.  Holmes said that the Treaty Power is its own source of authority, and so the limits on the Commerce Clause or other grants of domestic legislative authority are not limits on the Treaty Power.

For many years, conservatives have grumbled about Missouri v. Holland.  And they have a point that, taken to its logical limit, the case is problematic.  When I teach the Commerce Clause, I (like every con law teacher in America) assign my students to read United States v. Lopez, in which the Court struck down the Gun Free School Zones Act as beyond the power of Congress.  After they read Missouri v. Holland, I pose the following hypothetical question: Suppose Congress enters into a treaty with Canada and Mexico--the North American Gun Free School Zones Treaty, requiring that each country secure its schools from gun violence by enacting Gun Free School Zones Acts.  Now Congress re-enacts exactly the same law that was invalidated in Lopez as beyond the Commerce Power.  Is it valid under the Treaty Power?  If the students say yes, I push them, by substituting a hypothetical U.S./Lichtenstein Gun Free School Zones Treaty.

The point of my hypothetical examples is to show that if there is a problem with Missouri v. Holland, the problem may be one of evasion of limits: If the U.S. can find a willing international partner, it can enter a sham treaty, and use that sham treaty to give Congress power it otherwise lacks, thus undermining the Constitution's system of federalism.  At that point, most of the students usually agree that there probably is some limit on the Treaty Power.

But the Socratic method being the wonderful tool that it is, I don't stop there.  I then ask the students to articulate a judicially manageable test for the outer bounds of the Treaty Power.  Usually, some unsuspecting student says something like "it has to concern international matters."  At that point, I give some examples.  Can environmental issues be international?  Yes.  How about the human rights of the citizens and subjects of the respective signatories?  Of course.  And so forth.  We then discuss how, at least since World War II, the legitimate scope of international law has been seen as much more sweeping--and touching much more on the internal affairs of sovereigns--than at the Founding.

I--or better yet, a student--will then connect these developments to the parallel developments that led to an expansion in the understanding of the Commerce Clause since the Founding.  In both domains, technological advances in communication and transportation led to much greater inter-connectedness, so that the Founding Era's zone of exclusively local transactions became vanishingly small.

In the face of this reality, the Supreme Court had basically two options with respect to the Commerce Clause: One, favored by the liberals, was to leave the protection of state sovereignty to what Herbert Wechsler famously called the "political safeguards of federalism"--i.e., all of the ways in which the structure of the federal government gives a voice to state interests.  The other approach, favored by conservatives, was to articulate formal tests for the outer boundaries of the Commerce Power to ensure that while Congress can do almost anything under that power, there are a few things it cannot do.

The same appears to be true of the Treaty Power.  Here, one might think that the liberals' argument is even stronger, because the political safeguards of federalism are stronger here: in particular, it takes 67 votes in the Senate--the body designed to look after the states' interests--to enact a treaty.  Hence, there's no serious likelihood that the Senate will run roughshod over states' rights by signing sham treaties with Lichtenstein.  If one is inclined to identify a formal limit in the same way that the conservatives do with respect to the Commerce Clause, it might be something like the sham treaty limit and the other federalism-based limits that the Court enforces with respect to other powers--such as the Obamacare case's prohibition on mandates under the Commerce Clause and the prohibition on Congress telling a state where to locate its capital.  The Treaty Power would be very broad but not infinitely broad.

Where does Senator Cruz come down on these questions?  His essay echoes a 2005 article by Nick Rosenkranz in proposing that there may be non-self-executing treaties that are valid as exercises of the Treaty Power but nonetheless do not give Congress any power beyond those enumerated elsewhere in the Constitution.  He also suggests the possibility that Missouri v. Holland was right on its facts but wrong in the statement of the proposition for which it is most frequently cited: that by entering a valid non-self-executing treaty, the United States empowers Congress to enact legislation implementing that treaty, even if, absent the treaty, the legislation would not fall within any enumerated power.

In parts of the Essay, Cruz points to the sorts of outer-edge limits I mentioned above: The Court has said that laws that "commandeer" state legislative and executive branches of government violate state sovereignty, and so perhaps that's also a limit on the Treaty Power, for example. That's plausible, but Cruz has a bigger target.  He thinks that Congress simply can't rely on a non-self-executing treaty to go beyond the other enumerated powers.  To do so, he says, would be to alter the balance struck by the Framers.

Although there is a tone of reasonableness about the Cruz essay, it nowhere addresses the fundamental problem: Cruz talks at length about the concerns of Madison and Jefferson but does not say a single word about the ways in which the world--and international law--have changed since the Founding.  Cruz obviously does not give the liberals' answer to the Treaty Power question, but he also does not give what I am calling the conservatives' answer either: He doesn't say that there have to be some limits to the additional powers Congress gets via a treaty; he says there are no such additional powers at all.

This third answer has a direct parallel in the Court's Commerce Clause jurisprudence: the position taken by Justice Thomas--who would insist on distinctions that may have made some sense in the late 18th century--such as the distinction between manufacturing and shipping--that already had no economic reality by the middle of the 19th century.  Whereas the other conservatives acknowledge that the world has changed radically but still want to hold onto a few federalism limits, Justice Thomas's answer to the fact of change is to say "tough luck. My brand of originalism means assuming we still live in the framers' world."

That appears to be Senator Cruz's answer on the Treaty Power as well.  I'm sure it will get one vote in the Bond case.  Whatever the bottom-line result, I hope the Cruz position does not get more than one vote.

20 comments:

Ben Alpers said...

For anyone interested in hearing more about the facts of Bond (and Missouri v. Holland), NPR's Radiolab did a podcast about the Bond case last month. (They also go into the constitutional issues, but Mike goes a good deal deeper into them in this post.)

Michael C. Dorf said...

The RadioLab piece is entertaining and does a good job with the facts but it's distressingly right-wing. Jad and Robert interview Nick Rosenkranz--who is a serious and excellent scholar but whose views are pretty far to the right on this issue--as though he is a centrist.

Joe said...

Nick Rosenkranz contributed to a -- imho sadly narrow and tedious -- debate on the Treaty Power a few months back at Volokh Conspiracy.

I think it is worthy of note two things. (1) Missouri v. Holland obtained the votes of some justices who at the time had a more restrained view of federal power (including the Commerce Clause) than we have now. (2) And, somewhat related, I think the opinion really shouldn't be taken to be that open-ended.

Holmes' style does hurt here, since it has some opaque remarks. But, especially since taking them to their logical conclusion surely would have lost some of the majority, I don't think they should be taken that far.

Holland makes allusions to federalist limits but provides a sort of balancing test to show that whatever they may be (again, this part is opaque -- but it's there), they weren't violated here.

So, I think you can put various limits such as commandeering and so forth in there and stay loyal to Holland. A clear statement rule that might help the Breyer compromise that might be in the making is also possible. Of course, you'd need to determine what the outer limits are.

I also realize that there are real concerns here in a world where there are treaties that broadly protect basic necessities of life that can seriously expand congressional power.

Still, Bond to me is not something that crosses the line. Paul Clement's oral argument was a tad too self-assured on that front, as shown by some of the questions by the women justices. See also, a past post by Marty Lederman at Balkanization.

But, I understand how it might be seen as going too far in the case at hand (what if the dangerous chemicals were used by a terrorist? would being able to get it on Amazon matter then?) so to avoid a dubious restriction of the treaty power by the courts ala the PPACA ruling (including a hazy "this goes too far" test), I think a bit of constitutional avoidance would be the lesser of evils.

Hashim said...

I think your equating Cruz's treaty position with Thomas's commerce position is flawed. Cruz is simply arguing that a non-self-executing treaty can't go beyond Congress' other Article I powers -- but, as you note, those other powers have already been so expansively construed due to modern concerns that there are vey few original limits remaining. Accordingly, Cruz's treaty position is nowhere near as radical as Thomas's commerce powers, because cruz is merely arguing that the few remaining limits can't be end-run.

Now, you may say that the modern world requires ignoring those few remaining limits in the treaty context given international concerns, and that Cruz is holding on to the past to that limited extent. However, that seems pretty implausible given how rare it is for a treaty to exceed the post-New Deal commerce power -- as evidenced by the ridiculous facts of the Bond case. And in all events, Cruz's refusal to wipe out the few limits remaining is qualitatively different from Thomas's determination to turn back the clock.

egarber said...

I should know this, but anyway:

It's one thing to ask whether treaty power expands or goes beyond an enumerated power. But what about a treaty that conflicts with an overlapping power. What if a treaty called for changing the president's required minimum age, for example?

The constitution would trump that, correct? That's gotta be right. :)

Jimmyd said...

My problem with the debate over the treaty power is that it is a subterfuge. The real debate isn't over the power of Congress to make treaties, it's over a view of the structure of power between the federal government vs states.

In my view the idea that the Constitution represents a government of "limited and enumerated powers" is farcical. It worthy of note that the phrase itself doesn't actually appear anywhere in the text of the Constitution itself. Justice Marshall in McCullouh simply waves his hands and does his hocus pocus magic and claims it is "known by all" when it fact not only was it not known by all it wasn't known by anyone outside of a few power hungry madmen in black robes.

BTW, I think Bond should win but my view of this case closely tracks Beyer's (and I think Kennedy's too.) This is simply a case of prosecutorial overreach that never should have got this far. This is to say that the problem does not lie with Congress but with an overzealous Executive that twisted what Congress did it suit its own perverse ends.

Oh, and one more thing. I did not find Cruz's comments "thoughtful". Regurgitating some hack's views is not an exercise in thought: it's an exercise in imitation.

Michael C. Dorf said...

Eric: You are right. Reid v. Covert says that a treaty can't override the Bill of Rights and the same principle applies to other provisions of the Constitution. In fact, that's the basis for the argument against Missouri v. Holland: Opponents say that just as a treaty couldn't lower the eligibility age for the Presidency or authorize violations of the right to jury trial, so it can't alter the allocation of power between state and federal government. I think that general proposition is surely correct, but it's question begging to assume that the balance between the states and the federal government is the balance struck by the enumerated powers exclusive of the treaty power.

That dovetails with my thoughts in response to Hash's point. I think the strongest federalism-based arguments against the maximalist reading of Missouri v. Holland point to what are sometimes called "etiquette" rules of federalism: No commandeering; no abrogation of state sovereign immunity (except pursuant to particular powers); no dictating the location of state capitals; etc. To say that these are the strongest grounds for limiting Missouri v. Holland is not to say that I agree with them in full, however. For example, I think it is hardly obvious that the anti-commandeering rule should limit the Vienna Convention on Consular Relations. But I think that the arguments here are close.

I agree with you that if one takes the modern CC jurisprudence as given, then saying that the Treaty Power doesn't supplement congressional power at all doesn't impose much of a subject matter limit. I meant my analogy to operate at the level of the considerations that both Justice Thomas and Senator exclude. But thinking about it now, I would not be at all surprised to learn that Senator Cruz agrees with Justice Thomas about the Commerce Clause as well--in which case his objection to any congressional power per the Treaty Clause does have substantial consequences.

Joe said...

"The real debate isn't over the power of Congress to make treaties, it's over a view of the structure of power between the federal government vs states."

The specific power at issue does matter. Let it be noted that "Congress" doesn't make treaties, the Senate does. Though I reckon everyone here knows this.

Still, this is part of the "self-executing" issue -- treaties pretty broad can be ratified, but the enabling legislation that "Congress" passes might not be "necessary and proper" in certain cases.

Volokh Conspiracy covered some of this and suffice to say I was among the commenters not overly impressed with NR's side.

Jimmyd said...

Joe, your statement that Congress doesn't make treaties shows that you missed the point because Congress does in fact make treaties. Technically, Congress doesn't make them it merely "consents" to them.

The point in an important one. One way to look at the Bond case is to see it as a struggle between the federal government and state governments, that is to say a dispute about federalism. That's the view of Cruz and NR. But that isn't the only way to characterize the case.

Another way to characterize the case is a dispute between the Executive who negotiates the treaty and Congress, the legislative branch, who consents to it. In this view the Senate is merely the body of Congress that serves as the representative of the legislative branch with the executive. Thus the prosecutorial overreach in Bond is of critical importance. Why? Because what the indictment of Bond stands for is a cheat on Congress by the Executive. If Bond loses it will be carte blanche for the executive to negotiate a treaty, represent the contents of the treaty to Congress as X, and then once Congress approves the treaty represent to the judicial branch that the treaty stands for Y and if the judicial branch goes along with Y this maneuver essentially desiccates the "advice and consent" clause of the Treaty Power. All Congress has done is consent to a lie and is now as a practical matter helpless to stop it.

I'm convinced that Breyer see the case in this latter way and I suspect based on his comments as oral argument that Kennedy does too. There has been a real hard push to sell Bond to the public as a Federalism case when in truth it is a full frontal attack by the Executive on Constitutional prerogative of Congress.

Joe said...

Joe, your statement that Congress doesn't make treaties shows that you missed the point because Congress does in fact make treaties. Technically, Congress doesn't make them it merely "consents" to them.

You are the one who used loose language -- "the power of Congress to make treaties." Art. II notes the President has the power to make treaties with the advise/consent of a suitable supermajority of the "Senate," not "Congress." What "point" am I missing by noting this? Yes, maybe I should have fully corrected you and noted that the Congress doesn't make them at all -- the President does with the advise/consent of the Senate.

Anyway, then as I said, there is the issue of "self-executing" treaties and enabling legislation (like involved in the Bond case), the latter possibily opening up broad state/federal conflicts since a treaty can be very open-ended (e.g., protecting the rights of women or some human right of enough food) and arguably anything 'necessary and proper' to putting into place is authorized by Art. 1, sec. 8 -- which is where "Congress" as a whole comes into play.

The point in an important one. One way to look at the Bond case is to see it as a struggle between the federal government and state governments, that is to say a dispute about federalism. That's the view of Cruz and NR. But that isn't the only way to characterize the case.

My statement does not miss this point. It corrects your language a bit.

Another way to characterize the case is a dispute between the Executive who negotiates the treaty and Congress, the legislative branch, who consents to it. In this view the Senate is merely the body of Congress that serves as the representative of the legislative branch with the executive. Thus the prosecutorial overreach in Bond is of critical importance. Why? Because what the indictment of Bond stands for is a cheat on Congress by the Executive. If Bond loses it will be carte blanche for the executive to negotiate a treaty, represent the contents of the treaty to Congress as X, and then once Congress approves the treaty represent to the judicial branch that the treaty stands for Y and if the judicial branch goes along with Y this maneuver essentially desiccates the "advice and consent" clause of the Treaty Power. All Congress has done is consent to a lie and is now as a practical matter helpless to stop it.

The Senate consents to it -- it's a notable difference, since it provides a special protection to the states as states, which is represented in the Senate, while the House was originally understood to be representative of the people of the states themselves. You also appear to be arguing here that the executive is going beyond the logical contours of the treaty that was ratified. That's one way of viewing the case. Again, I'm not missing that point. Another view is that if Congress did try to pass a law to enforce the treaty that covered Ms. Bond, it would be improper to do so. That is the bigger game of Cruz -- he doesn't want Congress to have the power to pass such a broad based law.

I'm convinced that Breyer see the case in this latter way and I suspect based on his comments as oral argument that Kennedy does too. There has been a real hard push to sell Bond to the public as a Federalism case when in truth it is a full frontal attack by the Executive on Constitutional prerogative of Congress.

This assumes that Congress had no intent to pass an enabling law that covered the conduct in this prosecution. That's possible.

Joe said...

Joe, your statement that Congress doesn't make treaties shows that you missed the point because Congress does in fact make treaties. Technically, Congress doesn't make them it merely "consents" to them.

You are the one who used loose language -- "the power of Congress to make treaties." Art. II notes the President has the power to make treaties with the advise/consent of a suitable supermajority of the "Senate," not "Congress." What "point" am I missing by noting this? Yes, maybe I should have fully corrected you and noted that the Congress doesn't make them at all -- the President does with the advise/consent of the Senate.

Anyway, then as I said, there is the issue of "self-executing" treaties and enabling legislation (like involved in the Bond case), the latter possibily opening up broad state/federal conflicts since a treaty can be very open-ended (e.g., protecting the rights of women or some human right of enough food) and arguably anything 'necessary and proper' to putting into place is authorized by Art. 1, sec. 8 -- which is where "Congress" as a whole comes into play.

The point in an important one. One way to look at the Bond case is to see it as a struggle between the federal government and state governments, that is to say a dispute about federalism. That's the view of Cruz and NR. But that isn't the only way to characterize the case.

My statement does not miss this point. It corrects your language a bit.

Another way to characterize the case is a dispute between the Executive who negotiates the treaty and Congress, the legislative branch, who consents to it. In this view the Senate is merely the body of Congress that serves as the representative of the legislative branch with the executive. Thus the prosecutorial overreach in Bond is of critical importance. Why? Because what the indictment of Bond stands for is a cheat on Congress by the Executive. If Bond loses it will be carte blanche for the executive to negotiate a treaty, represent the contents of the treaty to Congress as X, and then once Congress approves the treaty represent to the judicial branch that the treaty stands for Y and if the judicial branch goes along with Y this maneuver essentially desiccates the "advice and consent" clause of the Treaty Power. All Congress has done is consent to a lie and is now as a practical matter helpless to stop it.

The Senate consents to it -- it's a notable difference, since it provides a special protection to the states as states, which is represented in the Senate, while the House was originally understood to be representative of the people of the states themselves. You also appear to be arguing here that the executive is going beyond the logical contours of the treaty that was ratified. That's one way of viewing the case. Again, I'm not missing that point. Another view is that if Congress did try to pass a law to enforce the treaty that covered Ms. Bond, it would be improper to do so. That is the bigger game of Cruz -- he doesn't want Congress to have the power to pass such a broad based law.

I'm convinced that Breyer see the case in this latter way and I suspect based on his comments as oral argument that Kennedy does too. There has been a real hard push to sell Bond to the public as a Federalism case when in truth it is a full frontal attack by the Executive on Constitutional prerogative of Congress.

This assumes that Congress had no intent to pass an enabling law that covered the conduct in this prosecution. That's possible.

Jimmyd said...

"The Senate consents to it -- it's a notable difference, since it provides a special protection to the states as states"

This point smacks of an anachronism. I do not know of any historical basis for making the argument that the Constitutional Convention put the power to consent to treaties in the Senate in order to protect states rights. To be honest, I haven't read those documents in awhile but my recollection is that the perspective at that time was that the Senate was considered to be the more "deliberative" body than the House. That's my understanding of why the Senate was chosen to represent Congress rather than the House in treaty making. I do not recall issues of federalism entering into the debate anywhere on this specific topic.

"This assumes that Congress had no intent to pass an enabling law that covered the conduct in this prosecution"

Not quite. The assumption is that Congress passes laws that conform to the treaty and thus it /did not/ possess the intent to pass enabling laws that cover the conduct in this prosecution. We interpret Congress's intentions in light of the purpose and text of the underlying treaty and we assume that Congress honestly and deliberately enabled laws to match. Thus if there is overreach here it is prosecutorial overreach and not Congressional overreach.




Evin Terna said...
This comment has been removed by the author.
Evin Terna said...

Now, you may say that the modern world requires ignoring those few remaining limits in the treaty context given international concerns, and that Cruz is holding on to the past to that limited extent. However, that seems pretty implausible given how rare it is for a treaty to exceed the post-New Deal commerce power -- as evidenced by the ridiculous facts of the Bond case. And in all events, Cruz's refusal to wipe out the few limits remaining is qualitatively different from Thomas's determination to turn back the clock.http://lol.mmo18.com/ | fifa14.mmo18.com

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