War and Treaty Powers

This is the easiest of all the federalism issues. Even during Dual Federalism, it was well recognized that States lacked power over international relations, including diplomatic and military matters. Since the American States were never sovereign in an international sense (notice that all instruments of diplomacy and war were conducted at the collective, rather than individual State, level; including the Declaration of Independence and the Treaty of Paris (concluding the War of Independence and transfering sovereignty to Congress)), there are no war or treaty powers "reserved" to them by the 10th Amendment. On this score, the grants of federal power in Art. I, Section 8, and the prohibitions on State power in Art. I, Section 10, are mostly besides the point. Had the Constitution remained silent on these matters, the result would be the same: plenary power in the federal government over international affairs and no power in States.

A somewhat more difficult issue arises when Treaties are used to provide an independent source of power for Congress.

Effect of Treaties

Treaties have both external and internal effects. The former refers to the international relations of the United States and foreign countries. The latter refers to the domestic law implications of a treaty. Most treaties are "self-executing" with respect to their external/international effects, but require implementing legislation to have any internal/domestic effect. That means a nation can enforce a treaty as is, in a proper forum (such as The UN Security Council or The World Court). For a current example, consider the Nuclear Non-Proliferation Treaty, and how it might be enforced against Iran if that nation develops nuclear weapons. For the most part, treaties operate as contracts among nations; thus, an offended nation, not individuals, must seek redress for violation of sovereign interests.

Treaties can also be "self-executing" as a matter of internal/domestic law, but are not usually. Treaties such as the Geneva Convention on the Treatment of Prisoners of War, and the International Covenant on Civil and Political Rights, bind the United States as a matter of international law, but are not enforceable by individuals in American courts. The trety must be followed by Implementing legislation enacted by Congress for them to have domestic effect.

The Migratory Bird Treaty of 1916 (39 Stat. 1702) bound the US and Great Britain to undertake measures to protect certain birds migrating between the US and Canada. The US fulfilled its obligations under the Treaty by enacting the Migratory Bird Treaty Act of 1918 (40 Stat. 755), which created domestic law. The Supreme Court held in Missouri v. Holland (1920) that a valid treaty would provide an independent source of legislative power to congress.

The Validity of Treaties

Treaties have to be valid both procedurally and substantively. To be procedurally valid, a treaty must be made in accordance with Art. II, Section 2, Par. 2 (President "shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur"). Are there substantive limits on the treaty-making powers of the President and Senate?

One substantive limit is that a treaty cannot contravene express prohibitory language in the Constitution (see Reid v. Covert; treaty cannot dispense with criminal procedue safeguards of Bill of Rights). Does the 10th amendment provide another limit? In other words, does the federal government's treaty making powers extend only to those subjects over which it has enumerated legislative power?

Justice Holms answered that question in the negative. So long as a treaty is the proper subject of international relations, it is valid (as a substantive matter) and can serve as a separate source of federal regualtory power. And, the only way to know if it is valid in that sense is if another country will entreaty with the US on the matter. Thus, the mere existence of an international treaty conclusively answers the substantive question.

The more difficult question, when it comes to the diplomatic and military relations of the US, is whether the President must comply with the formalities of treaty- and war-making, or whether he can act unilaterally. These issues will be taken up in a few weeks, under the topic of Separation of Powers.

Posted by The Professor at March 3, 2006 01:27 PM | TrackBack