In Bond v. United States, Justice Thomas offers a fascinating discourse on whether in fact the treaty power itself–separate from the power of Congress to implement legislation pursuant to a treaty. Thomas explains that from time immemorial till the 1950s, the treaty power was only understood to affect matters of international intercourse.
I write separately to suggest that the Treaty Power is itself a limited federal power. Cf. United States v. Lopez, 514 U. S. 549, 584 (1995) (THOMAS, J., concurring) (“[W]e always have rejected readings of . . . the scope of federal power that would permit Congress to exercise a police power”). …
The Constitution does not, however, comprehensively define the proper bounds of the Treaty Power, and this Court has not yet had occasion to do so. As a result, some have suggested that the Treaty Power is boundless—that it can reach any subject matter, even those that are of strictly domestic concern. See, e.g., Re- statement (Third) of Foreign Relations Law of the United States, §302, Comment c (1986). …
But this interpretation conflicts with the bedrock presumption that the federal government acts with limited powers, and these limitations are in place to protect not just federalism in the abstract, but liberty itself.
Yet to interpret the Treaty Power as extending to every conceivable domestic subject matter—even matters with- out any nexus to foreign relations—would destroy the basic constitutional distinction between domestic and foreign powers. See United States v. Curtiss-Wright Ex- port Corp., 299 U. S. 304, 319 (1936) (“[T]he federal power over external affairs [is] in origin and essential character different from that over internal affairs . . .”). It would also lodge in the Federal Government the potential for “a ‘police power’ over all aspects of American life.” Lopez, supra, at 584 (THOMAS, J., concurring). A treaty-based power of that magnitude—no less than a plenary power of legislation—would threaten “‘“the liberties that derive from the diffusion of sovereign power.” ’ ” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9).
These concerns are heightened when a self-executing treaty could legislate domestically, shortcutting the role of the House which is not needed for ratification.
And a treaty-based police power would pose an even greater threat when exercised through a self-executing treaty because it would circumvent the role of the House of Rep- resentatives in the legislative process. See The Federalist No. 52, p. 355 (J. Cooke ed. 1961) (J. Madison) (noting that the House has a more “immediate dependence on, & an intimate sympathy with the people”).
Scalia, in his concurring opinion, avoided ruling on the scope of the self-executing treaty:
The Government raises a functionalist objection: If the Constitution does not limit a self-executing treaty to the subject matter delineated in Article I, §8, then it makes no sense to impose that limitation upon a statute implement- ing a non-self-executing treaty. See Tr. of Oral Arg. 32–33. The premise of the objection (that the power to make self- executing treaties is limitless) is, to say the least, argua- ble. But even if it is correct, refusing to extend that prop- osition to non-self-executing treaties makes a great deal of sense.
But Scalia joins this portion of Thomas’s opinion, so he seems to be of the view that the self-executing treaty power is limited.
Justice Thomas, as if often his position would address this matter the “appropriate case.”
Although the parties have not challenged the constitutionality of the particular treaty at issue here, in an appropriate case I believe the Court should address the scope of the Treaty Power as it was originally understood. Today, it is enough to high- light some of the structural and historical evidence sug- gesting that the Treaty Power can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs.
Thomas first surveys the history of treaties, from Grotius to Puffendorf to Vattel to the Articles of Confederation, and concludes:
Preconstitutional practice therefore reflects the use of the treaty-making power only for matters of international intercourse; that practice provides no support for using treaties to regulate purely domestic affairs.
Same for the ratification of the Treaty power in the Constitution:
Consistent with that general understanding of limited federal power, evidence from the ratification campaign suggests that the Treaty Power was limited and, in par- ticular, confined to matters of intercourse with other nations.
At the Virginia ratification convention, Madison explained:
“The object of treaties,” in Madison’s oft-repeated formula- tion, “is the regulation of intercourse with foreign nations, and is external.” Ibid.
Likewise for Hamilton during the ratification debates:
Although Alexander Hamilton undoubtedly believed that the Treaty Power was broad within its proper sphere, see infra, at 8, the view he expressed in essays during the New York ratification campaign is entirely consistent with Madison’s. After noting that the Treaty Power was one of the “most unexceptionable parts” of the proposed Consti- tution, Hamilton distinguished the Treaty Power from the legislative power “to prescribe rules for the regulation of the society” and from the executive power to “execut[e] . . . the laws.” The Federalist No. 75, at 503–504. “The power of making treaties,” he concluded, “is plainly neither the one nor the other.” Id., at 504. Rather, Hamilton ex- plained that treaties “are not rules prescribed by the sovereign to the subject, but agreements between sover- eign and sovereign.” Id., at 504–505. That description is difficult to square with a view of the Treaty Power that would allow the Federal Government to prescribe rules over all aspects of domestic life.
While the Treaty Power did not place limits on the treaty power, Thomas contends that the scope of the power was over external affairs.
That understanding of the Treaty Power did not permit the President and the Senate to exercise domestic authority commensurate with their substantial power over external affairs.
This understanding prevailed in the early years of our Republic, with citations to Madison, Jefferson, and Story.
The understanding that treaties are limited to, in Madi- son’s words, “the regulation of intercourse with foreign nations,” endured in the years after the Constitution was ratified. …
For example, Thomas Jefferson’s Senate Manual of Parliamentary Procedure, drafted while he was Vice President and therefore president of the Senate, Bradley 415, noted the need for a treaty to have a nexus to international intercourse. If a treaty did not “concern the foreign nation, party to the contract,” then “it would be a mere nullity res inter alias acta.” Thomas Jefferson’s Senate Manual (1801), in 9 The Writings of Thomas Jef- ferson 80–81 (H. Washington ed. 1861). Later, Justice Story likewise anchored the Treaty Power in intercourse between nations. J. Story, Commentaries on the Constitu- tion of the United States 552–553 (abr. ed. 1833). (“The power ‘to make treaties’ is by the constitution general; and of course it embraces all sorts of treaties, for peace or war; for commerce or territory; for alliance or succours; for indemnity for injuries or payment of debts; for the recogni- tion or enforcement of principles of public law; and for any other purposes, which the policy or interests of independ- ent sovereigns may dictate in their intercourse with each other”).
The touchstone of all of these views was that the Treaty Power is limited to matters of international intercourse. …
The postratification theory and practice of treaty- making accordingly confirms the understanding that treaties by their nature relate to intercourse with other nations (including their people and property), rather than to purely domestic affairs.
Thomas continues that this limited nature of the treaty power is consistent with the original understanding.
The original understanding that the Treaty Power was limited to international intercourse has been well repre- sented in this Court’s precedents. Although we have not had occasion to define the limits of the power in much detail, we have described treaties as dealing in some manner with intercourse between nations. . . . . Nothing in our cases, on the other hand, sugests that the Treaty Power conceals a police power over domestic affairs.
Thomas turns to Missouri v .Holland. He finds Holmes’s necessary and proper analysis “”improperly broad,” but stresses that the treat was in keeping with the requirement that treaties affect matters of international intercourse–in this case birds that flew between states.
Whatever its other defects, Missouri v. Holland, 252 U. S. 416 (1920), is consistent with that view. There, the Court addressed the constitutionality of a treaty that regulated the capture of birds that migrated between Canada and the United States. Convention with Great Britain for the Protection of Migratory Birds, Aug. 16, 1916, 39 Stat. 1702, T. S. No. 628. Although the Court upheld a statute implementing that treaty based on an improperly broad view of the Necessary and Proper Clause, see ante, at 12–14 (SCALIA, J., concurring in judg- ment), Holland did not conclude that the Treaty Power itself was unlimited. See 252 U. S., at 433 (“We do not mean to imply that there are no qualifications to the treaty-making power . . .”). To the contrary, the holding in Holland is consistent with the understanding that treaties are limited to matters of international intercourse. The Court observed that the treaty at issue addressed mi- gratory birds that were “only transitorily within the State and ha[d] no permanent habitat therein.” Id., at 435; see also id., at 434 (“[T]he treaty deals with creatures that [only] for the moment are within the state borders”). As such, the birds were naturally a matter of international intercourse because they were creatures in international transit.
Thomas explains that in only the last half-century has this notion of the treaty impacting domestic law changed:
At a minimum, the Second Restatement firmly reflects the understanding shared by the Framers that the Treaty Power has substantive limits. Only in the latter part of the past century have treaties challenged that prevailing conception by addressing “matters that in the past countries would have addressed wholly domestically” and “purport[ing] to regulate the relationship between nations and their own citizens,” Bradley 396; see also ante, at 12 (opinion of SCALIA, J.).
Thomas cites, very deliberately, the position of the SG that there may be a line.
But even the Solicitor General in this case would not go that far; he acknowledges that “there may well be a line to be drawn” regarding “whether the subject matter of [a] treaty is a proper subject for a treaty.” Tr. of Oral Arg. 43:10–15.
This far, but no farther.
In an appropriate case, I would draw a line that respects the original understanding of the Treaty Power. I ac- knowledge that the distinction between matters of in- ternational intercourse and matters of purely domestic regulation may not be obvious in all cases. But this Court has long recognized that the Treaty Power is limited, and hypothetical difficulties in line-drawing are no reason to ignore a constitutional limit on federal power. The parties in this case have not addressed the proper scope of the Treaty Power or the validity of the treaty here. The preservation of limits on the Treaty Power is nevertheless a matter of fundamental constitutional im- portance, and the Court ought to address the scope of the Treaty Power when that issue is presented. Given the increasing frequency with which treaties have begun to test the limits of the Treaty Power, see Bradley 402–409, that chance will come soon enough.
Next time, everyone is on notice.