Beyond Medellin: Reconsidering Federalism Limits on the Treaty Power

INTRODUCTION The Constitution recognizes three sources of law as the supreme law of the land: the Constitution itself, federal laws passed in pursuance of the Constitution, and treaties made under the authority of the United States. (1) In addition to this recognition, the Constitution places limits on the ability to create and modify the law through each of these sources of law. Changes to the Constitution itself must be made through a formal amendment process. (2) The legislative power is limited by the enumeration of particular powers granted to Congress." (3) The power to make treaties is vested in the President, and subject to only one explicit limitation: a two-thirds vote in the Senate. (4) Both statutes and treaties may become the supreme law of the land, and they may even pursue the same ends. Why, then, are the limits on the legislative power so different from the limits on the treaty power? If principles of federalism impose limits on the power of the federal government to legislate, does federalism constrain the power to make treaties as well? (5) The answer to this question was long thought to be settled by Missouri v. Holland, (6) a 1920 case that dealt with the power of Congress to pass legislation implementing the 1916 Convention for the Protection of Migratory Birds (7) between the United States and Great Britain. The majority opinion written by Justice Holmes held that "[i]f the treaty is valid there can be no dispute about the validity of the statute under Article I, [section] 8, as a necessary and proper means to execute the powers of the Government." (8) Holmes went on to find that the Tenth Amendment did not bar legislation implementing the treaty despite the fact that regulation of migratory birds would be beyond the reach of Congress's enumerated powers absent the treaty. (9) In short, the treaty power was not subject to federalism limits. In light of recent shifts in the Supreme Court's federalism jurisprudence, it is not clear that Missouri v. Holland was decided correctly. After largely abandoning judicial enforcement of federalism limits for five decades following the New Deal, the Court in recent years has returned to the idea of judicially enforceable federalism limits in a number of areas, most notably the commerce power. (10) With federalism limits emerging and reemerging in these other areas, the question of whether federalism constrains the treaty power is again the subject of debate. The Supreme Court's recent decision in Medellin v. Texas (11) may have signaled the Court's willingness to enforce federalism limits on the treaty power. While Medellin does not explicitly address Missouri v. Holland, it does suggest a presumption against serf-executing treaties-functionally, this is a presumption against preemption of state law by international obligations. The questions regarding congressional power (and the continued validity of Missouri v. Holland) remain open. This Note aims to evaluate possible federalism limits on the treaty power in the wake of Medellin. Part I takes a closer look at Missouri v. Holland and precisely why it is problematic. Part II briefly traces the death and return of judicially enforceable federalism limits from the New Deal to the Rehnquist Court's "new federalism." Part III examines the emergence of Medellin's presumption against self-executing treaties. Part IV evaluates the presumption against self-executing treaties and considers other possible limits on the treaty power. I. WHY MISSOURI v. HOLLAND IS PROBLEMATIC The Court in Missouri v. Holland addressed the power of Congress to pass legislation implementing a treaty. The history of the case shows that the treaty in question was specifically intended to enable Congress to legislate beyond the limits of its enumerated powers. Justice Holmes's opinion thus upholds not only a broad view of the treaty power, but also the idea that the federal government can increase the power of Congress by treaty rather than by constitutional amendment. …