> At that time, Congress attempted to protect migratory birds by statutory law. However, both state and federal courts declared that law unconstitutional. Not to be denied, authorized parties subsequently negotiated and ratified a treaty with Canada to achieve the same purpose. Once the treaty was in place, Congress then passed the Migratory Bird Treaty Act of 1918 to enforce the treaty.[10] In Missouri v. Holland, the United States Supreme Court upheld that the new law was constitutional in order to support the treaty.
That doesn't make sense: how can the federal government (whose power is only that granted by the Constitution) agree to & be bound by a treaty which is unconstitutional?
The important feature here is that it was unconstitutional due to Article 10, which delegates all other powers not laid out to the states. If it were unconstitutional because of some other clause that'd be the end of it at least until a different interpretation of whatever clause came about. With Article 10 however it just means the federal government needed to find some clause that gave them the appropriate constitutional authority. It doesn't work for everything but it does work for a lot of stuff.
What wouldn't it work with? It sounds like any treaty can at all override a claim to states rights. The 10th amendment is thus absolutely meaningless because the set of all rights that are supposedly left to the states can be covered by a treaty.
It won't work with anything that is expressly forbidden in the constitution. Other than that currently it's pretty broad. There's a Harvard Law Review article [0] about the limits such as they are and does a better job than I ever could being professionals and actual lawyers.
That doesn't make sense: how can the federal government (whose power is only that granted by the Constitution) agree to & be bound by a treaty which is unconstitutional?
The treaty isn't unconstitutional, though.
The existing standard for constitutional review of treaties is that the things called for by a treaty are allowed unless the Constitution specifically forbids them. This is a much lower standard than the "forbidden unless the Constitution specifically authorizes it" applied to other acts of the federal government.
And since the original case revolved around states wanting to regulate in preference to Congress, and Article VI says treaties have supremacy over state law, the treaty-based bird regulations stood up to scrutiny, because the treaty itself was held to be permitted by the Constitution.
Also, in the modern day the original bird law might not have been struck down at all. The theoretical support for the law was in Congress' (specifically-enumerated) power to regulate interstate commerce, and rooted in the inherently state-line-crossing nature of the migrations. Interpretation of the interstate commerce power has swung back and forth like a pendulum several times over the history of the US. At the time of the original bird law it was being interpreted extremely narrowly; today it is typically read more broadly.
> The existing standard for constitutional review of treaties is that the things called for by a treaty are allowed unless the Constitution specifically forbids them.
That's a risible standard, though: it renders the Tenth Amendment a dead letter. It doesn't make any sense for the Constitution to explicitly reserve all powers not granted to the United States to the several states or people, and at the same time grant the United States the ability to collude with foreign powers in taking those powers from the states and/or people.
Yes, treaties are the supreme law of the land, but only if they are constitutional. The President & Senate could not enter a treaty which restores slavery, for example.
From what little I've read on Supreme Court jurisprudence it seems like the Commerce Clause has just gotten more and more broadly read over the years. When has it really swung back to more narrowly read in a significant way?
During John Marshall's tenure on the court, it was read broadly in favor of Congress.
But then we had the era of tortured readings of parts of the Constitution through which the Supreme Court basically tried to enforce a particular economic policy on the entire country. This was a time when progressive reformers were pushing for labor standards, bans on child labor, minimum wages and all the things we mostly take for granted today. And the Court hated that stuff philosophically, so they looked for ways to kill it. Sometimes the commerce clause would be read narrowly (if it could be used to strike down a federal regulation). Sometimes it would be read broadly but against the states (if it could strike down a state regulation). The Fourteenth Amendment was another popular choice of text at the time, with the Court reading it as having meant to establish not the equality before the law of black and white citizens, but rather a sanctity of contract and a condemnation of economic regulation beyond the wildest dreams of modern libertarians. This was the so-called "Lochner era" named after the keystone case of the Court's economic policy.
The swing back to broad Congressional regulatory power began with Franklin Roosevelt threatening to "pack" the Supreme Court with judges who would support him, leading the conservative members of the Court to realize they would lose no matter what and finally starting to allow some economic regulation to occur.
Then later in the 20th century the Court mostly stopped questioning assertions of the commerce power, except for some (in)famous flip-flops led by Scalia as he tried to find Commerce Clause justifications for striking down federal gun control while keeping federal drug prohibition.
Good question! It's a State's Rights thing: the federal government doesn't have arbitrary control over the states. The federal government can only force the states to adopt regulation if it's for a constitutionally-defined reason. In this case, using the Treaty Clause
I mean it's a pretty difficult path to take. You have to find a foreign government willing to make this treaty and take the same steps, you have to have control of the State department to negotiate, have to have the President sign off on the treaty, and get a 2/3rds super majority vote from the Senate. And the treaty has to be self-executing, meaning it doesn't require the nation to create additional legislation. The state's local laws would also have to directly contradict the treaty. Also, the next President could pull us out of the treaty unilaterally at any time.
Honestly, if the federal government wanted to usurp state's rights, there are much easier ways than this. The commerce clause gives a lot of power to Congress, and the federal government can often encourage the states to adopt legislation by making some federal funding to the states conditional on the exaction of certain regulations, though there are limits to that.
The federal government has a short list of "enumerated powers", and it can only do those things. (The list is in Article I, Section 8, and it's quite short. It's things like "establish[ing] Post Offices and Post Roads", or "provid[ing] and maintain[ing] a Navy". Regulating migratory birds isn't one of those things.)
It also has a list of things it can't do (take property without compensation, quarter soldiers in private homes, etc.). You can't violate these rules even in service of an enumerated power. However, regulating migratory birds also isn't one of those things.
So Congress can't regulate migratory birds, unless it finds some other clause that can be interpreted it allow it, but if it can, then it's fine. A the treaty power is another clause, so sure, you can do a lot of things that aren't enumerated powers (but that aren't prohibited!) by signings treaties. You could sign an arms control treaty that violates the second amendment, but any law implementing it would be unconstitutional and struck down out of hand. Similarly, any law implementing an "international libel treaty" would be nixed out of hand. But a Migratory Bird Treaty Act? Sure, why not?
The treaty power isn't limitless, and I think think modern courts are a bit more sceptical of it; I'm not sure Missouri v. Holland would be decided the same way today. On the other hand, the commerce clause and the "necessary and proper" clauses have been interpreted very loosely by modern courts, so I don't think anything would really change; Congress would just pass a law claiming to be regulating commerce due to the impact of migratory birds on interstate birdwatching tourism. :) (No sillier than the winning argument in Gonzales v. Raich!)
> A the treaty power is another clause, so sure, you can do a lot of things that aren't enumerated powers (but that aren't prohibited!) by signings treaties.
The Tenth Amendment says that anything not explicitly granted to the United States is reserved to the individual states or people: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. I.e., it prohibits any power it doesn't explicitly grant.
I think it's pretty obvious that the United States can't take power from the states simply by signing treaties with foreign powers, rather than being given those powers by the states and/or people.
> No sillier than the winning argument in Gonzales v. Raich!
That doesn't make sense: how can the federal government (whose power is only that granted by the Constitution) agree to & be bound by a treaty which is unconstitutional?