The ghost of Oliver Wendell Holmes will continue to haunt constitutional law. In his concurring opinion, Justice Scalia would inter, once and for all, Missouri v. Holland. First he refers to the Holmes missive as an “ipse dixit.” That’s even worse than a dictum:
Since the Act is clear, the real question this case pre- sents is whether the Act is constitutional as applied to petitioner. An unreasoned and citation-less sentence from our opinion in Missouri v. Holland, 252 U. S. 416 (1920), purported to furnish the answer: “If the treaty is valid”— and no one argues that the Convention is not—“there can be no dispute about the validity of the statute under Arti- cle I, §8, as a necessary and proper means to execute the powers of the Government.” Id., at 432.4 Petitioner and her amici press us to consider whether there is anything to this ipse dixit. The Constitution’s text and structure show that there is not.5
Scalia insists that the treaty making power does not expand the scope of Article I, and reading it otherwise (as Holmes did) would cause a “Seismic” shift in federal power.
But in Holland, the proponents of unlimited congres- sional power found a loophole: “By negotiating a treaty and obtaining the requisite consent of the Senate, the President . . . may endow Congress with a source of legis- lative authority independent of the powers enumerated in Article I.” L. Tribe, American Constitutional Law §4–4, pp. 645–646 (3d ed. 2000). Though Holland’s change to the Constitution’s text appears minor (the power to carry into execution the power to make treaties becomes the power to carry into execution treaties), the change to its structure is seismic.
After reciting the views of international law scholars, which finds that federalism does not limit the treaty power, Scalia imagines a parade of horribles with the “right treaty.” The Congress could re-eanct the Gun Free School Zone Act with Latvia!
If that is true, then the possibilities of what the Federal Government may accomplish, with the right treaty in hand, are endless and hardly farfetched. It could begin, as some scholars have suggested, with abrogation of this Court’s constitutional rulings. For example, the holding that a statute prohibiting the carrying of firearms near schools went beyond Congress’s enumerated powers, United States v. Lopez, 514 U. S. 549, 551 (1995), could be reversed by negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools. Similarly, Congress could reenact the inval- idated part of the Violence Against Women Act of 1994 that provided a civil remedy for victims of gender- motivated violence, just so long as there were a treaty on point—and some authors think there already is, see MacKinnon, The Supreme Court, 1999 Term, Comment, 114 Harv. L. Rev. 135, 167 (2000).
Scalia also posits the implications of an Antipolygamy Convention, wherein the federal government would attempt to supplant state laws on matters of inheritance.
But reversing some of this Court’s decisions is the least of the problem. Imagine the United States’ entry into an Antipolygamy Convention, which called for—and Congress enacted—legislation providing that, when a spouse of a man with more than one wife dies intestate, the surviv- ing husband may inherit no part of the estate. Constitu- tional? The Federalist answers with a rhetorical ques- tion: “Suppose by some forced constructions of its authority (which indeed cannot easily be imagined) the Federal Legislature should attempt to vary the law of descent in any State; would it not be evident that . . . it had exceeded its jurisdiction and infringed upon that of the State?” The Federalist No. 33, at 206 (A. Hamilton). Yet given the Antipolygamy Convention, Holland would uphold it. Or imagine that, to execute a treaty, Congress enacted a statute prohibiting state inheritance taxes on real prop- erty. Constitutional? Of course not. Again, The Federalist: “Suppose . . . [Congress] should undertake to abrogate a land tax imposed by the authority of a State, would it not be equally evident that this was an invasion of that con- current jurisdiction in respect to this species of tax which its constitution plainly supposes to exist in the State governments?” No. 33, at 206. Holland would uphold it. As these examples show, Holland places Congress only one treaty away from acquiring a general police power.
Scalia next turns to Necessary & Proper, with a nice cite to Will Baude. While these treaties may be necessary, not proper.
The Necessary and Proper Clause cannot bear such weight. As Chief Justice Marshall said regarding it, no “great substantive and independent power” can be “im- plied as incidental to other powers, or used as a means of executing them.” McCulloch v. Maryland, 4 Wheat. 316, 411 (1819); see Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L. J. 1738, 1749–1755 (2013). No law that flattens the principle of state sovereignty, whether or not “necessary,” can be said to be “proper.” As an old, well-known treatise put it, “it would not be a proper or constitutional exercise of the treaty-making power to provide that Congress should have a general legislative authority over a subject which has not been given it by the Constitution.” 1 W. Willoughby, The Constitutional Law of the United States §216, p. 504 (1910).
Next Scalia turns to the fact that Reid v. Covert attempted to distinguish Holland by saying that the 10th Amendment can be limited by the Treaty power, but not the other provisions of the Bill of Rights. This never made sense to me in light of the Court’s federalism jurisprudence. Scalia agrees:
We would not give the Government’s support of the Holland principle the time of day were we confronted with “treaty-implementing” legislation that abrogated the freedom of speech or some other constitutionally protected individual right. We proved just that in Reid v. Covert, 354 U. S. 1 (1957), which held that commitments made in treaties with Great Britain and Japan would not permit civilian wives of American servicemen stationed in those countries to be tried for murder by court-martial. The plurality opinion said that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” Id., at 16.
To be sure, the Reid plurality purported to distinguish the ipse dixit of Holland with its own unsupported ipse dixit. “[T]he people and the States,” it said, “have delegated [the treaty] power to the National Government [so] the Tenth Amendment is no barrier.” 354 U. S., at 18. The opinion does not say why (and there is no reason why) only the Tenth Amendment, and not the other nine, has been “delegated” away by the treaty power. The distinction between provisions protecting individual liberty, on the one hand, and “structural” provisions, on the other, cannot be the explanation, since structure in general—and espe- cially the structure of limited federal powers—is designed to protect individual liberty. “The federal structure . . . secures the freedom of the individual. . . . By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individ- ual from arbitrary power.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9–10).
We have here a supposedly “narrow” opinion which, in order to be “narrow,” sets forth interpretive principles never before imagined that will bedevil our jurisprudence (and proliferate litigation) for years to come. The immedi- ate product of these interpretive novelties is a statute that should be the envy of every lawmaker bent on trapping the unwary with vague and uncertain criminal prohibi- tions. All this to leave in place an ill-considered ipse dixit that enables the fundamental constitutional principle of limited federal powers to be set aside by the President and Senate’s exercise of the treaty power. We should not have shirked our duty and distorted the law to preserve that assertion; we should have welcomed and eagerly grasped the opportunity—nay, the obligation—to consider and repudiate it.
If only this were the majority opinion….