Missouri v. Holland’s Second Holding

I. INTRODUCTION The Supreme Court in Missouri v. Holland, speaking through Justice Holmes, famously held that Congress has the power to pass a law to implement a treaty even if the law would not fall within Congress' legislative power in the absence of the treaty. (1) Essential to this holding were two distinct propositions. The first proposition is that the treaty-makers have the constitutional power to make treaties on matters falling outside Congress' enumerated powers. The second is that, if the treaty-makers make such a treaty and the treaty is not self-executing, the Necessary and Proper Clause gives Congress the power to implement such a treaty through a statute even if, in the absence of the treaty, the statute would be beyond Congress's legislative power. The Court in Missouri v. Holland focused on the first proposition. It devoted only one sentence to the second proposition: "If 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." (2) As David Golove has shown, controversy concerning the issue addressed in Missouri v. Holland has recurred throughout our history, both before and after that decision. (3) Each time, however, the controversy has revolved around the power of the treaty-makers to make treaties on matters outside Congress' enumerated powers. The proposition that Congress has the power to implement any obligations undertaken under valid treaties has not been seriously questioned--until recently. In recent articles, critics of Missouri v. Holland have suggested that it is the second, heretofore unquestioned aspect of Missouri v. Holland that should be rejected rather than the first. Professor Curtis Bradley would construe the Constitution to "allow the treaty-makers the ability to conclude treaties on any subject but ... limit their ability to create supreme federal law to the scope of Congress's power to do so." (4) In other words, the treaty-makers would have the power to conclude treaties on matters beyond Congress' legislative powers, but such treaties could not be self-executing, and Congress would lack the power to execute them. More recently, Professor Nicholas Q. Rosenkranz has argued, too, that the treaty-makers have the power to conclude treaties on matters beyond Congress' legislative powers and that Congress lacks the power to execute such treaties. (5) Rosenkranz's proposed constitutional interpretation differs from Bradley's in that he would recognize the treaty-makers' power to make such treaties self-executing. It is easy to see why no one has ever regarded it as plausible to read the Constitution to authorize the making of treaties that require implementation but deny Congress the power to implement such treaties. Such a regime would appear to contradict one of the Founders' key convictions--that the federal government must have the power to assure compliance with its international commitments. Prominent among the reasons the Founders decided to abandon the Articles of Confederation and write a new Constitution were the failure of the States to comply with treaties during the period of the Articles of Confederation and the absence of any mechanism in the central government for assuring compliance with such treaties. The Founders feared the foreign relations problems that could be caused by treaty violations and, more affirmatively, they wanted to reap the economic benefits of a reputation for treaty compliance. (6) Although I believe that they gave the President and Senate the power to make treaties on matters beyond Article I, (7) it seems clear that the Founders would not have granted the federal government the power to conclude such treaties without giving the federal government the power to implement them. Better to have no treaty at all than a treaty likely to be violated. (8) Leaving the implementation of treaty commitments to the States would have been anathema. …