Senator Ted Cruz published an essay in the Harvard Law Review forum, on the scope of the treaty power. While much of the article focuses on the upcoming Bond case, Part IV reflects a point I’ve made several times. The Rehnquist Court federalism revolution, continued in several structural opinions from the Roberts Court, makes Missouri v. Holland untenable. Cruz writes:
Part IV applies this Essay’s thesis and considers whether Justice Holmes’s 1920 Missouri v. Holland28 opinion must be overruled. Mis- souri v. Holland has been viewed as the seminal case on the federal government’s treaty power for decades. Many view it as granting the federal government near–carte blanche authority to make and imple- ment treaties. This Essay suggests that Missouri v. Holland can be construed simply as rejecting a facial challenge to a particular treaty, which may have validly covered some subject matter falling within Congress’s Commerce Clause authority. But if Missouri v. Holland cannot be construed in that way, then it should be overruled in light of recent precedents from the Rehnquist Court and Roberts Court that police the boundaries of our constitutional structure. Finally, Part V concludes by applying this Essay’s framework to contend that the Su- preme Court should reverse the Third Circuit’s ruling in Bond and overturn Bond’s federal conviction.
Here is the core of that argument. Both Missouri v. Holland and Reid v. Covert predated the Court’s appreciate of federalism. If we take those structural limits seriously, Missouri v. Holland cannot stand. My point largely echoes Cruz’s.
That said, Missouri v. Holland probably would have to be over- ruled if one believes that Congress lacked the Commerce Clause au- thority to implement the Treaty legislatively. The Necessary and Proper Clause, combined with the Treaty, would not be sufficient to displace state sovereignty under the Tenth Amendment, according to this Essay’s framework. Missouri v. Holland treated the Tenth Amendment as essentially an unenforceable ink blot172 — or rather, an “invisible” ink blot.173 Likewise, the Reid v. Covert plurality distin- guished Missouri v. Holland by citing to the case that perniciously de- clared that the Tenth Amendment was “but a truism.”174 However, the Rehnquist Court’s revitalization of structural constitutional limits to federal authority — in Lopez, Morrison, New York, Printz, and other cases — rejects the view that this Amendment can be read out of the Constitution. The Roberts Court, too, has continued to enforce struc- tural limits on the balance of power between the federal and state gov- ernments.175 These developments may very well render Missouri v. Holland a “doctrinal anachronism” that stare decisis should not save.176
Specifically, here is my discussion of Reid v. Covert.
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 theTenth 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.
I address these issues here, here, here, here, here, and here.