Missouri v. Holland

Yesterday the Supreme Court granted certiorari in Bond v. United States, which gives the Justices an opportunity to revisit Missouri v. Holland, which said (in 1920) that treaties could give Congress powers beyond those granted in Article I, Section 8.  (Or, put another way, that measures taken to execute a treaty under the Necessary and Proper Clause are constitutional though they would not be otherwise.)

Missouri v. Holland has always struck me as a strange decision. Part of that is because it was written by Holmes in his usual cryptic way.  Part of it is that the opinion said that there are some justiciable limits to the treaty power (or treaty augmentation power), but didn’t say much about what those are. Now in an era where the enumerated powers of Congress were read more narrowly, I can understand why the Court might have wanted to open the door for other sources of federal authority.  Today, though, this notion seems either unnecessary or wrongheaded.

One way to solve this dilemma would be to reintroduce a distinction between treaties under Article II and executive-congressional agreements under Article I.  (Right now, these are treated as functionally equivalent.)  In other words, maybe a treaty that is ratified by a supermajority of the Senate should be able to increase the powers of Congress, but an executive-congressional agreement ratified by majorities in each House just like a bill should not. This would allow the Court to reaffirm Missouri while limiting its scope, as most modern international agreements are not ratified as Article II treaties.

For more on this, I would encourage you to look at the ongoing exchange over on Volokh between Rick Pildes and Nick Rosencranz.

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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…