Missouri v. Holland

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Brett Bellmore says:

    “In other words, maybe a treaty that is ratified by a supermajority of the Senate should be able to increase the powers of Congress,”

    In other words, maybe if Congress can’t get the states to ratify an amendment to the Constitution, or even the House to sign on, the Senate can get Liechtenstein to ratify it, and cut both the House and the states out of it.

    No, Missouri v Holland simply needs to be repudiated, period.

  2. Gerard Magliocca says:

    Well, you also need the President, not just the Senate.

    Your point is well taken, but my guess is that the Court will not have the votes to just overrule Holland.

  3. Brett Bellmore says:

    Yeah, it’s never a good bet that the Supreme court will fix it’s own mistakes, rather than doubling down. But it’s always appropriate to hope they will.

  4. Joe says:

    The first comment is confused. The treaty power is there. It is a specific way granted to the government to use power. It is not a matter of “amending” the Constitution. A treaty cannot violate the Constitution. Congress cannot require prayers pursuant to a friendship treaty with Iran.

    Also, since the Senate has representatives of each state, the “states” are not “cut out of it.” Pre-17A “states” did not pick senators. State legislatures elected by people did. Now, said people, in states, elect two senators. T

    Missouri v. Holland is somewhat cryptic which suggests it need not be overruled, just clarified, particularly since the facts there are different than Bond. Today, a material involved in the bird treaty seems like something you could pass under the Commerce Clause. So, it doesn’t seem like something the anti-Pildes side should have a problem with.

    Anyway, “treaties” cover certain ground and demand a supermajority. Seems to be a bit too loose use of ‘agreements’ that are really “treaties,” but to my knowledge the courts have deemed the line sort of a political question. If two houses pass something, yes, it should be based on something other than the power that would only be found in the treaty clause or necessary/proper to enforce it.

    But, I’d need to know what sort of executive/congressional agreements are not really so limited.

  5. Joe says:

    Simply put, why should Missouri v. Holland be repudiated, period? If anything, it is MORE open to restraining federal power than later rulings.

  6. Sumj says:

    Tort reform is always hoped for, but not a guarantee though…