Treaties and Commandeering

by Michael Dorf

Yesterday's NY Times carried a story that, I imagine, was baffling to most readers. It noted that a committee of the Idaho legislature had voted to kill (for now) legislation designed to bring that state into line with provisions of a multilateral treaty governing the transnational enforcement of child support obligations. The U.S. signed the treaty in 2007 but full ratification depends on the enactment of legislation in all 50 states.

To which the moderately well educated reader might well have reacted "huh? I thought the Senate gave its consent to treaties in order for them to become binding." The very well educated lawyer, however, will understand what's going on here. The treaty imposes affirmative implementation obligations on the governmental authorities in each signatory nation, which with respect to family law in the U.S. means state governments. But under the Supreme Court's "anti-commandeering" doctrine as set forth in New York v. United States and Printz v. United States, Congress cannot force a state to enact or enforce federal law. Congress can "bribe" the states to do so by attaching strings to federal funds--so long as those conditions are not too coercive. And as noted in the Times story, that's what the federal government has done here, but, as with the Medicaid funding, it appears that anti-Washington don't-tell-us-what-to-do sentiment can sometimes trump self-interest on the part of the states. (Note, however, that in this instance it's not anti-Obama sentiment, as the Bush II Administration signed the treaty.)

Here I want to briefly reflect on the wisdom of applying the anti-commandeering doctrine to treaties. I'll begin by saying that I don't like the anti-commandeering doctrine in any context. It strikes me that the dissenters were right in New York and Printz. Congress had the power to "commandeer" under the Articles of Confederation; nothing in the Constitution expressly forbids that means to Congress; in general the Constitution gave Congress more, not fewer, powers than Congress enjoyed under the Articles; and therefore, in my view if Congress is regulating in the area of one of its enumerated powers, then measures that commandeer the states are (absent some other problem) necessary and proper to the exercise of that power.

But assuming that the anti-commandeering rules properly apply to exercises of most of Congress's powers, are there reasons to suppose that they don't apply to self-executing treaties or to statutes that implement non-self-executing treaties? Although some commentators have argued that Congress (or in the case of a self-executing treaty, the President plus 2/3 of the Senate) should have the power to commandeer pursuant to a treaty, I think the logic of New York and Printz pretty much precludes this result. If commandeering is not a necessary and proper means of carrying out Art. I, Sec. 8 powers, it's hard to see why it would be necessary and proper to carrying out a treaty.

That's unfortunate because modern multilateral treaties (from which the U.S. and its nationals derive reciprocal benefits) sometimes call for actions that, in our federal system, can only be taken at the state level.

Or maybe not. Under Missouri v. Holland, a treaty may give Congress powers it would otherwise lack, i.e., powers that are otherwise reserved to the states. Thus, one could imagine that a somewhat different version of the Child Support treaty could empower Congress to enact national legislation and take federal executive action with respect to child support, even though there is no enumerated federal power governing family law. (I say this would only arise under a different version of the treaty, because the actual treaty allows for action at the state level in federal nation-states.)

Would the Supreme Court go for that? I doubt it. Although the Court's ruling in Bond v. United States last year avoided the question of whether, and to what extent, Holland is good law, I have difficulty imagining five Justices of the current Court thinking that a treaty could empower Congress to create federal family law, absent some Article I, Sec. 8 power. (The power to regulate interstate and foreign commerce would authorize some aspects of federal law governing child support, but probably not a comprehensive code.)

The irony here is that the only reason that Congress (or in the case of a self-executing treaty, the President and the Senate) would need to resort to the radical step of federalizing family law is that the Court itself has cut off commandeering as an option. That observation is a variation of the dissenters' point in the anti-commandeering cases: Commandeering is often less intrusive of the prerogatives of the states than federalization, which is why subsidiarity is seen as a protection for state sovereignty in Germany and the EU.