The Treaty Power Outline

The Treaty Power

1. The Constitution of the United States provides that the President "shall have Power, by and with the consent of the Senate, to make treaties, provided two thirds of the Senators concur . . . ." Art. II, § 2, cl. 2

   1. In addition, the Congress shall have the power "To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof." Art. I, § 8, cl. 18.

2. Missouri v. Holland (in April 10, 2013 folder)

   1. In Missouri v. Holland, the issue was whether a treaty with England concerning the protection of certain migratory birds and the implementing statute were void as an interference with the rights reserved to the States by the Tenth Amendment. The Court concluded that the Tenth Amendment did not present a sufficient limitation in the this case to the Treaty making power or the power of Congress to enact an implementing statute as a "necessary and proper means to execute the powers of the Government."

      • In Missouri, "[t]he Court explained that the Tenth Amendment did not operate as a limitation on the treaty power because that amendment applied to powers 'not delegated to the United States,' while the treaty power was 'delegated expressly' to the federal government." Brief for the Government in Bond v. United States; see also United States v. Comstock (finding that the Tenth Amendment was not applicable to a statute enacted under the Necessary and Proper Clause "[v]irtually by definition" because the necessary-and-proper power, as an Article I power, is "not [a] power[] that the Constitution 'reserved to the States'")

      1. The Court stated that "[t]o answer this question, it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because, by Article II, § 2, the power to make treaties is delegated expressly, and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land." Missouri v. Holland

      2. "If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government." Missouri v. Holland

      3. "The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed." Missouri v. Holland

      4. "Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States." Missouri v. Holland

         • "It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention. We do not mean to imply that there are no qualifications to the treaty-making power, but they must be ascertained in a different way. It is obvious that there may be...

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