I really enjoyed the Federalist Society/American Society of International Law Debate between Nick Rosenkranz and Rick Pildes on whether “Congress’s Enumerated Powers Cannot be Increased by Treaty” (the video should be posted soon, hopefully).

I have been a fan for some time of Nick’s article, Executing the Treaty Power. Roughly, Nick argues that the dictum in Holmes’s Missouri v. Holland opinion–that the treaty power gives Congress additional powers to enact laws that would otherwise violate the 10th Amendment–is wrong.

However, before today, I had never heard the opposing point of view–Rick Pildes did a wonderful job sketching it out. Rick also had a great debate with Michael McConnell during the AALS ConLaw Section Breakfast on comparing Bush’s and Obama’s executive powers. Rick made a few points that were quite strong. Kudos to him for pulling double-duty on one day.

Rick brought up the example of the Treaty of Paris. This Treaty imposed many responsibilities on the United States, however the Articles of Confederation Congress lacked the power to pass the laws to comply with those obligations. The Constitution’s Treaty Power, enacted against that backdrop, empowered Congress to pass laws that were necessary and proper to comply with these international treaties. This makes sense.

Nick replied that the President should not be entering into treaties that Congress lacks the power to comply with. This also makes sense. (John McGinnis posed a good question about whether Nick’s view would place a limitation on the President’s ability to serve as the sole voice for foreign affairs).

These discussions were quite good, but one point interested me more–the relationship of Reid v. Covert to Nick’s article. Reid held, roughly, that Congress is not able to enact a law that violated a specific provision of the Bill of Rights (in this case the 5th and 6th Amendments).

Rick conceded that under Reid (which he suspected was probably not on strong footing [JB Update: Rick did not say that Reid was on shaky footing, but rather doubted whether the Court would extend Reid to very different situations, for example involving signing a treaty that would end a war, but that would require overriding certain rights]), Congress could not pass a law that, for example, would  seize firearms (that would otherwise violate the 2nd Amendment) or prohibit publishing of certain dangerous materials (that would violate the First Amendment). Though Rick countered that under the war power, he said the Court would be hard-pressed to stop Congress from passing such laws in time of conflict. Rick said that Reid was one of Nick’s strongest points.

Rick made a big point to distinguish Reid, which concerned Congress passing laws that violates an individual liberty guaranteed in the Bill of Rights, and Holland, which concerned Congress passing laws that violated a structural protection in the Constitution (in the case of Holland, the 10th Amendment).

Indeed, the Reid Court, per Justice Black, made the same point:

There is nothing in Missouri v. Holland, 252 U.S. 416, which is contrary to the position taken here. There, the Court carefully noted that the treaty involved was not inconsistent with any specific provision of the Constitution. The Court was concerned with the Tenth Amendment, which reserves to the States or the people all power not delegated to the National Government. 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.

That section cited United States v. Darby, which provided the classic bit that the 10th Amendment is nothing but a truism.

Our conclusion is unaffected by the Tenth Amendment. which provides:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the [p124] States, are reserved to the States respectively, or to the people.

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

This argument reflects the understanding that there is a fundamental difference between provisions of the Bill of Rights (and I would throw in the Reconstruction Amendments) and the structural protections of the Constitution (10th Amendment, Separation of Powers, Federalism). Indeed, most con law classes are divided up between structure and rights.

But this isn’t quite right.

Recently, the Supreme Court emphatically rejected that distinction in Bond v. United States (which was 9-0). Perhaps fittingly, Bond was the very case that teed up the issue of the scope of the treaty power. Justice Kennedy, writing for the unanimous Court, was quite clear that the structural protections of the Constitution are essential to securing individual liberty:

Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.

…

The structural principles secured by the separation of powers protect the individual as well.

Justice Kennedy also articulated that position in his dissent in NFIB, as read from the bench.

This case presents real questions regarding the structure of the Constitution.

Some may think a case concerning constitutional structure with issues concerning checks and balances, separation of powers and federalism is somehow have lesser importance or priority in a case concerning liberties guaranteed in the Bill of Rights or the Civil War Amendments, but structure means liberty. [JB: As read, Justice Kennedy said the word structure, paused for emphasis, means, paused for emphasis, and liberty, pause for emphasis].”

Structure means liberty.

Even Chief Justice Roberts’s handdown in NFIB acknowledged this point.

The limits on government power foremost in many American’s minds are likely to be affirmative restrictions such as contained in the Bill of Rights. These are affirmative restrictions come into play however only where the government possesses authority to act in the first place. And in our federal system, the national government possess only those limited powers the constitution assigns to it.

If no constitutional power authorizes Congress to pass a certain law, that law may not be enacted even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the constitution.

The corpus of our liberty, as understood by the Supreme Court, is not limited to the provisions in the Bill of RIghts. “Structure means liberty.” At the AALS convention, after I told a professor I will be teaching constitutional law, she asked me if I was going to teach structure or rights–I was tempted to ask rhetorically, “what’s the difference?”, but I decided not to.

For those doubting how this plays with the 10th Amendment, Kennedy’s opinion in Bond specifically addressed Darby.

 In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government. Whether theTenth Amendment is regarded as simply a “ ‘truism,’ ” New York , supra , at 156 (quoting United States v. Darby , 312 U. S. 100, 124 (1941) ), or whether it has independent force of its own, the result here is the same.

The mere fact that a structural provision is at issue–for example the 10th Amendment, or I would add, the doctrine of enumerated powers (the key issue in NFIB)–does not eliminate the liberty interest at stake.

So which way does this cut? If the principles of Reid are correct, and individual liberty guarantees cannot be infringed by the treaty power, then why should our liberties protected by Federalism be subjected to lesser scrutiny? Does the Missouri v. Holland dictum survive Reid, as amended by the New Federalism?

The holding of Reid v. Covert read in light of the shift from the now-obsolete view of the 10th Amendment to our New Federalism, would seem to subvert, rather than support Missouri v. Holand (Covert subverts!).

Even if Holland was correct when decided, perhaps recent federalism developments have abrogated it.

Coincidentally, the treaty power issue in Bond is currently pending cert before the Court on remand from the 3rd Circuit (see my earlierblogging here). Nick mentioned that the case has been relisted five times, which is a good sign.

How would Justice Kennedy consider this issue, if teed up in Bond II, in light of Bond I and Reid v. Covert?

If the Court grants cert on this issue, I may write on this further.