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.