The president, through the treaty power of the U.S., can enter into an international agreement, say with Canada and Mexico, to (a) meet the objective of decreasing gun related violence in the contracting states and (b) commit to doing so through banning automatic assault weapons and high capacity magazines.
DiMento acknowledges that such a move would frustrate the separation of powers by cutting the House, and maybe even the Senate, out of the picture. Though he is not too concerned.
The approach that the president employs, if stymied under the advice and consent provision for treaty making, might be a congressional-executive agreement, such as was undertaken in other controversial international arenas including our entry into NAFTA and the WTO. Here he can act without the need of a super majority of the Senate – or of either House. Or he can even act alone through executive agreement. Entering international agreements by himself or with the Congress historically has been by far much more common than the process for treaty making using the “advice and consent” approach (involving two-thirds of the Senate).
I’m not sure if Congress would be totally cut out of the picture. This only holds true if the treaty is in fact self-executing (I’m not sure what a self-enforcing executive agreement in this context would look like). If the treaty is not self-executing, Congress (both houses) would still need to enact implementing legislation–legislation, I am sure that would have just as hard of a time passing if the President went through normal political process.
However, if the statutes are passed pursuant to the treaty power, there is an interesting wrinkle–could Congress pass a law that would otherwise violate the Second Amendment (let’s assume that the laws in question are in fact constitutional)?
I have previously blogged about whether this expanded power can be used to pass a law that would otherwise violate a constitutional right–such as the Second Amendment? This is a key element of the recent debates between Nick Rosenkranz and Rick Pildes, and others on Voolokh about Missouri v. Holland and the upcoming case of United States v. Bond. Nick addressed this dynamic in a recent post about the interplay between Missouri v. Holland and Reid v. Covert. Eugene Kontorovich wrote about it here.
DiMento addressed Holland, and Reid v. Covert, but seems to assume that the Second Amendment could be restricted under this power. He cites to Holmes’s broad dicta, and concludes, “A power to protect endangered animals (birds were being decimated for both hunting and fashion at the time) certainly is not greater than one to protect our citizens, including our children.”
I don’t see such a treaty going anywhere, though it would make for a perfect test of how the President’s treaty power comports with Congress’s ability to pass laws that restrict constitutional rights.