Treaties & Implied Powers Over Foreign Affairs

Question 1

Treaties Articles

Answer 1

Art I: Congress has powers to ratify treaties, regulate foreign commerce, declare war, regulate army/navy

Art II: President has authority to make treaties, with Senate ratification (2/3 of Senate)

Art VI: All treaties made under authority of U.S. shall be supreme law of the land SCt has not perceived any limits regarding this negotiation w/ foreign country

Question 2

Limits on Treaties

Answer 2

1. Permitted unless they violate Constitution
2. If there is a conflict between treaties and federal statute, last one adopted controls
3. If there is a conflict between treaties and state statute, treaty prevails

Question 3

Missouri v. Holland (1920) J. Holmes

Answer 3

Treaty between US and UK to protect migratory birds. Missouri challenges it under 10th amendment.

Holding: Treaty is constitutional. Art II expressly authorizes treaties, Art VI makes them supreme law of land. Treaty here doesn’t contravene any part of Constitution

National interest is involved, can only be protected by national action in concert w/ another power

Congress may not have power to enact this w/o treaty – but gov’t can enact all laws N+P to enforce treaties

Implications: Holmes spoke broadly of treaty power, must be matters of sharp exigency that an act of Congress could not deal w/ but that a treaty can

Question 4

Reid v. Covert (1957) J. Black

Answer 4

Treaty between US and UK granted military jurisdiction over U.S. servicemen serving overseas.

Holding: Constitution comes first. Treaties can’t trump constitutional rights

10th amendment can provide barrier to Treaty power. No national interest here to supersede the 10th amendment protections

No agreement w/ a foreign nation can confer power on Congress which is free from restraints of Constitution. U.S. citizen entitled to DP.

Question 5

Bond v. U.S. (2014) J. Roberts

Answer 5

Bond poisoned her friend when she learned friend was having an affair with her husband. Was prosecuted under Chemical Weapons Convention Act, which was enacted to enforce an international treaty.

Holding: Limited reading statute to avoid issue about treaty power.

Court was asked to decide issue of Congress’s ability to enact laws to implement treaty. Court declined to decide this question, and instead construed act narrowly to say that it should not apply to local dispute that is traditionally handled under state law

J. Scalia concurs: would have made it clear that Congress’s power to enact statutes to implement treaties is limited

Bricker Amendment: If sections of treaty are unconstitutional – can severe

Failed effort

Remaining implications: Any provision of a treaty that conflicts w/ Constitution shall not be enforced BUT rest of treaty can be severed