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What “errant line of” Establishment Clause precedents did Town of Greece “confront and curtail”?

June 16th, 2014

In Justice Scalia’s dissental in Elmbrook School District v. Doe, joined by Justice Thomas, he asserts that in light of Town of Greece v. Galloway, the case should have been GVR’d. He claims that Town of Greece “confronted and curtailed” the line of precedents relied on by the 7th Circuit in Greece.

In the decision below, the en banc Court of Appeals for the Seventh Circuit relied on those cases to condemn a suburban Milwaukee school district’s decision to hold high-school graduations in a church. We recently confronted and curtailed this errant line of precedent in Town of Greece v. Galloway, 572 U. S. ___ (2014), which upheld under the Establishment Clause the saying of prayers before monthly town-council meetings. Because that case made clear a number of points with which the Seventh Circuit’s decision is fundamentally inconsistent, the Court ought, at a minimum, to grant certiorari, vacate the judg- ment, and remand for reconsideration (GVR).

This addresses a point I’ve kicked around before. What exactly did Town of Greece do?

First, it apparently jettisoned the endorsement test:

First, Town of Greece abandoned the antiquated “endorsement test,” which formed the basis for the decision below. In Town of Greece, the Second Circuit had also relied on the notion of endorsement. See 681 F. 3d 20, 30 (2012). We reversed the judgment without applying that test. What is more, we strongly suggested approval of a previ- ous opinion “disput[ing] that endorsement could be the proper [Establishment Clause] test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and the ‘forthrightly religious’ Thanksgiving proc- lamations issued by nearly every President since Wash- ington.” 572 U. S., at ___ (slip op., at 11) (describing County of Allegheny, supra, at 670–671 (KENNEDY, J., concurring in judgment in part and dissenting in part)). After Town of Greece, the Seventh Circuit’s declaration— which controlled its subsequent analysis—that the en- dorsement test remains part of “the prevailing analytical tool” for assessing Establishment Clause challenges, 687 F. 3d, at 849 (internal quotation marks omitted), mis- states the law.

Is failing to apply the test the same thing as “abandon[ing]” it? And is an citation to an AMK concurring opinion sufficient?

Second, Scalia hints that Town of Greece abandoned the coercion test:

Second, Town of Greece made categorically clear that mere “[o]ffense . . . does not equate to coercion” in any manner relevant to the proper Establishment Clause analysis. 572 U. S., at ___ (slip op., at 21) (opinion of KENNEDY, J.). “[A]n Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views.” Ibid. See also id., at ___ (THOMAS, J., concurring in part and con- curring in judgment) (slip op., at 7–8) (same). …

In this case, it is beyond dispute that no religious exercise whatever occurred. At most, respondents complain that they took offense at being in a religious place. See 687 F. 3d, at 848 (plaintiffs asserted that they “‘felt uncomfortable, upset, offended, unwel- come, and/or angry’ because of the religious setting” of the graduations). Were there any question before, Town of Greece made obvious that this is insufficient to state an Establishment Clause violation.

It bears emphasis that the original understanding of the kind of coercion that the Establishment Clause condemns was far narrower than the sort of peer-pressure coercion that this Court has recently held unconstitutional in cases like Lee and Santa Fe.

Does saying that offense is not coercion represent an abandonment of the coercion test? Does originalism resolve this matter? This seems like a strained reading as well.

Finally, Scalia seems to suggest that the only acceptable Establishment Clause test is one of history–similar to his opinions in Crawford (confrontation clause) and Heller (Second Amendment).

Last but by no means least, Town of Greece left no doubt that “the Establishment Clause must be interpreted ‘by reference to historical practices and understandings.’ ” 572 U. S., at ___ (slip op., at 7–8). Moreover, “if there is any inconsistency between [a ‘test’ set out in the opinions of this Court] and . . . historic practice . . . , the incon- sistency calls into question the validity of the test, not the historic practice.” Id., at ___ (ALITO, J., concurring) (slip op., at 12). …

We ought to remand this case to the Seventh Circuit to conduct the historical inquiry mandated by Town of Greece—or we ought to set the case for argument and conduct that inquiry ourselves.

If Justice Kennedy purported to eschew these other tests, and rely solely on originalism, I would think he would have done so more clearly.

That only Thomas joined this dissental strains the understanding that Greece actually accomplished these goals. But it does leave the question open for future litigation.

Executive Self-Help and Obamacare

June 9th, 2014

David Pozen has a fascinating new article in the YLJ, titled “Self-Help and the Separation of Powers,” and an explanatory post at Just Security, titled “Interpretation and Retaliation in the Obama Administration.” David’s article, in short, argues that when Congressional intransigence prevent the President form enacting his policies, Chief Executives resort to a form of self-help through creative interpretation of the existing law, and his own Article II powers. David cites as examples the President (and Harold Koh’s, contra OLC) determination that our involvement in Libya was not “hostilities” within the War Powers Resolution. Or, the President’s decision to enforce a quasi-DREAM act through executive fiat, after a Senate filibuster killed it (remember Justice Scalia’s irate Arizona v. US dissent on that?).

I would add one key example to David’s framework: Obamacare! If both Houses of Congress were controlled by Democrats, the ACA’s countless flaws, errors, and kinks could have been fixed by legislation. Further, Congress could have extended deadlines, imposed across-the-board waivers, and perhaps allocated more funding for the implementation of the law. That did not happen. The GOP has, at every conceivable juncture, frustrated the ACA’s implementation. So, applying David’s theory, POTUS turned to self-help. Through myriad delays, waivers, and creative reinterpretations of the Affordable Care Act, the President has achieved the policy goals that would have been present had the Democrats controlled Congress.

Of course, this puts aside the fact that congressional Democrats got creamed in 2010, largely in response to opposition Obamacare. That the President can enact his policies, notwithstanding electoral returns and Congressional opposition, seems to be consistent with his broad view of Article II powers. The Bergdahl prisoner swap, in direct contravention of the text of the law, is further evidence of this fact.

Update: Also on point is Nick Bagley’s article in the New England Journal of Medicine, titled “The Legality of Delaying Key Elements of the ACA.” I blogged about it in April.

Bond Dissolves With Federalism

June 2nd, 2014

At first blush, Bond is something of a disappointment. The Chief Justice, in his never-ending effort to achieve unanimity, in the words of Justice Scalia, rewrote the statute to avoid the underlying constitutional issue, as he did in NFIB. So the Missouri v. Holland dictum still stands, and the Court implies, slightly, that its reasoning is correct.

Fortunately, we have no need to interpret the scope of the Convention in this case. Bond was prosecuted under section 229, and the statute—unlike the Convention— must be read consistent with principles of federalism inherent in our constitutional structure.

Robert, casually suggests that the Convention is not subject to the limitations of federalism. In other words, Holmes is (gasp) right.

Though, is some other favorable, pro-federalism language throughout the opinion. Roberts seems to be trying to create a presumption of statutory interpretation that construes statutes in a way so as not to violate federalism. This is effectively his opinion in NFIB. So though the principles of federalism are not reached, the law itself is invalidated.

Here the Chief flirts with federalism.

Even if the treaty does reach that far, nothing prevents Congress from implementing the Convention in the same manner it legislates with respect to innumerable other matters—observing the Constitution’s division of respon- sibility between sovereigns and leaving the prosecution of purely local crimes to the States. The Convention, after all, is agnostic between enforcement at the state versus federal level.

And suggests that federalism places many limitations on all federal interactions with the states:

Among the background principles of construction that our cases have recognized are those grounded in the rela- tionship between the Federal Government and the States under our Constitution. It has long been settled, for ex- ample, that we presume federal statutes do not abrogate state sovereign immunity, Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985), impose obligations on the States pursuant to section 5 of the Fourteenth Amendment, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 16–17 (1981), or preempt state law, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947).

Closely related to these is the well-established principle that “‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law over- rides’” the “usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (quoting Atascadero, supra, at 243). To quote Frankfurter again, if the Federal Government would “‘radically readjust[] the balance of state and national authority, those charged with the duty of legislating [must be]reasonablyexplicit’”aboutit. BFPv.ResolutionTrust Corporation, 511 U. S. 531, 544 (1994) (quoting Some Reflections, supra, at 539–540; second alteration in origi- nal). Or as explained by Justice Marshall, when legisla- tion “affect[s] the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters in- volved in the judicial decision.” Bass, supra, at 349.

We have applied this background principle when con- struing federal statutes that touched on several areas of traditional state responsibility. See Gregory, supra, at 460 (qualifications for state officers); BFP, supra, at 544 (titles to real estate); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 174 (2001) (land and water use). Perhaps the clearest example of traditional state authority is the punishment of local criminal activity. United States v. Morrison, 529 U. S. 598, 618 (2000). Thus, “we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bass, 404 U. S., at 349.

Here is this canon of construction he tries to articulate:

These precedents make clear that it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute. In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless read- ing; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Con- gress meant to reach purely local crimes, before interpret- ing the statute’s expansive language in a way that in- trudes on the police power of the States.

When a statute is ambiguous, interpret it to be consistent with federalism. Imagine that!

There is, for good measure, a citation to Justice Kennedy’s opinion in Bond I:

In light of all of this, it is fully appropriate to apply the background assumption that Congress normally preserves “the constitutional balance between the National Govern- ment and the States.” Bond I, 564 U. S., at ___ (slip op., at 10). That assumption is grounded in the very structure of the Constitution. And as we explained when this case was first before us, maintaining that constitutional balance is not merely an end unto itself. Rather, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individ- ual from arbitrary power.” Ibid.

It is up for Pennsylvania to decide:

Here, in its zeal to prosecute Bond, the Federal Government has “displaced” the “public policy of the Commonwealth of Pennsylvania, enacted in its capaci- ty as sovereign,” that Bond does not belong in prison for a chemical weapons offense. Bond I, supra, at ___ (slip op., at 12)

In the end, it’s not fantastic, but it’s not terrible.

Update: Richard Re reads some tea leaves in the Chief’s opinion for Yates v. United States (the anti-shredding fish case):

Looking ahead, the decision in Bond is likely a harbinger for the recently granted case Yates v. United States, where a defendant was convicted of violating Sarbanes-Oxley’s “anti-shredding” prohibition by throwing illegally caught fish off his boat. Critics have viewed Yates as an instance of federal prosecutorial overreach accomplished by reading statutory definitions in an unnaturally broad way. Surprisingly, the statutory issue in Yates will be informed by the Court’s most recent brush with the treaty power.

Thomas on the Treaty Power in Bond

June 2nd, 2014

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.

Missouri v. Holland Lives

June 2nd, 2014

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).

In conclusion

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….

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What “errant line of” Establishment Clause precedents did Town of Greece “confront and curtail”?

Executive Self-Help and Obamacare

Bond Dissolves With Federalism

Thomas on the Treaty Power in Bond

Missouri v. Holland Lives