Could the President Circumvent United States v. Lopez through the Treaty Power?

November 5th, 2013

In Bond, Justice Alito asks the important question (based on some fluffy law review articles) about circumventing Supreme Court precedents based on the treaty power.

JUSTICE ALITO: Whenever — when this Court has issued decisions in recent years holding that there are some limits on Congress’s power, cases like Lopez and Morrison and City of Boerne, there have been legal commentators who have written articles saying that could be circumvented to — through the use of the treaty power. Do you agree with that?

GENERAL VERRILLI: I don’t think there’s a yes or no answer to that. I think that — because I don’t think it would be — the question would be: What does the treaty power encompass? It wouldn’t be a circumvention if this is something that could be constitutionally done under the treaty power, but -¬≠

JUSTICE ALITO: Could you — all right. I’ll take back the word “circumvention.” Could you reach the opposite result? Could it — could Congress¬†regulate the possession of a gun within a school zone by entering into a treaty that authorizes such legislation?

GENERAL VERRILLI: I think the question in that case would be whether the treaty is a valid exercise of the treaty power.

JUSTICE BREYER: Oh, it is. That is the problem. There is an underlying — I don’t mean to cut you off, but at some point you seem not to see a problem that I think I see. And the problem underlying it, if you get into the treaty area is this: Given the power, as there is in Medellin’s majority, to have some self-executing treaties, in principle your position constitutionally would allow the President and the Senate, not the House, to do anything through a treaty that is not specifically within the prohibitions of the rights protections of the Constitution. That’s Missouri v. Holland. And I doubt that in that document the Framers intended to allow the President and the Senate to do anything. Now, you ask us now to say whether the answer to that question is yes or no. We still have a democracy, in other words, of which the House is part. Now, if you carry it to an extreme, that’s what you are, that’s where you are, and I am worried about that and I think others are, too.

Because Five Justices on the Supreme Court is much more Democratic than the President and 2/3 of the Senate. But good on Breyer for identifiying *some* limit on federal power!

And for those of you who think this is crazy, I blogged earlier about a LawPRof who wants the President to regulate guns via the treaty power.