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!
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!)