The Boundless Treaty Power within a Bounded Constitution

INTRODUCTION The Constitution grants the President the power to make treaties by and with the advice and consent of the Senate. One persistent matter of debate is whether there are subject matter limits to the President's power to make treaties. In particular, in making an international agreement with a foreign nation, are there certain topics that are off limits? (1) For instance may the President make a treaty about the details of family law, a subject often thought beyond the authority of the federal government? (2) Or may the President make a treaty that obliges the United States to respect certain human rights, say a right to be free of corporal punishment? While many nuanced answers are possible, in the main, there are two primary answers: "no" and yes." (3) Those who respond "no" to such questions suppose that the federal power to make treaties is not constrained by any subject matter limits. Their answer likely turns (in part) on their inability to detect subject matter constraints either in the Treaty Clause or elsewhere in the Constitution. Hence they conclude that the President, with the Senate's consent, can make treaties on any subject: commerce, tax, military alliances, the rights of aliens, territorial cessions, migratory birds, human rights, children's rights, and even animal rights. If the Republic of Panama sought a treaty with the United States relating to neighborhood watches, the President could make such a treaty, provided the Senate was unwise enough to consent with the requisite supermajority. Those who answer "yes"--those who suppose that there are subject matter limits on the treaty power--likely trade upon a sense that there must be implied limits on what the President may cram into a treaty. The federal government is a government of exhaustively enumerated and (therefore) limited powers. After carefully expressing what the Congress may do in Article I, Section 8 and what the President may do in the rest of Article II, how can it be that the Treaty Clause surreptitiously conveys broad power to reach any and all subjects? Such thinking leads some to conclude that the Constitution imposes subject matter limits that are left unsaid. I count myself in the first camp, among those who suppose that the Constitution contains no subject matter limits on the treaty power. More precisely, I believe that the original Constitution granted the President the power to make international agreements, with no particular constraints on the subjects they might touch. I reach this conclusion with a great deal of reluctance not because the case for this proposition is weak but because, as a matter of policy, I favor subject matter limits on the treaty power as a means of ensuring exclusive state authority over certain matters. Nonetheless, I have become convinced that the Constitution does not gratify my preferences. The treaty power is boundless in the sense that treaties of the United States can concern any subject, no matter how fanciful or seemingly absurd the matter might seem. Yet the treaty power is not completely without bounds. There likely are constraints on federal power that apply regardless of the sort of power (legislative, executive, judicial) being exercised. Such constraints would likewise apply to the treaty power as well. 3 Part I canvasses possible subject matter limits on the treaty power. Part II discusses the Constitution's text. Part III considers subject matter limits on treaties prior to the Constitution's creation. Part IV examines how the Constitution constrains the treaty power that lacks subject matter bounds. I. POSSIBLE SUBJECT MATTER LIMITS The basic argument that the treaty power is boundless can be stated relatively succinctly, at least for now. In the eighteenth century, a treaty was a significant, durable contract or agreement between sovereigns. (4) The national government enjoys the power to make such contracts, without regard to subject matter, because the Constitution grants the power to make treaties without imposing any such constraints. …