July 12, 2010
Cornyn, Kagan on Congressional Treaty Power
Among Supreme Court Nominee Elena Kagan's written responses to members of the Senate Judiciary Committee released on Friday was this exchange with Senator Cornyn on congressional power to enact legislation implementing a treaty:
[Question 4] Missouri v. Holland, 252 U.S. 416, 432 (1920), held that "[i]f a treaty is valid there can be no dispute about the validity of a statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government."
[Question 4a.] In your view, can Congress and the President expand or evade the scope of Congress's Article I powers by entering into a treaty requiring an enforcing law that would otherwise be unconstitutional [as exceeding congressional authority under Article I]?
Response: Missouri v. Holland held that Congress may enact a statute implementing a treaty pursuant to its authority under the Necessary and Proper Clause, even if Congress does not otherwise have Article I authority to do so, provided the statute does not violate a constitutional prohibition.
The exchange brings to mind debates even today about whether Congress can "exceed its authority" by enacting legislation under the General Welfare Clause--that is, whether Congress can do under the General Welfare Clause what it can't do under, say, the Commerce Clause.
Of course it can. Madison and Hamilton waged this debate many years ago--Madison for the limited view, Hamilton for the expansive view--and the Court settled it in favor of Hamilton in 1936 in United States v. Butler.
The issue for the General Welfare Clause (and also for congressional authority to implement a treaty) is not whether the political branches can "expand or evade the scope of Congress's Article I powers," as Senator Cornyn suggests. Instead, the General Welfare Clause and the Necessary and Proper Clause (to implement a treaty) are themselves independent congressional powers. That Congress could not achieve its goals under, say, the Commerce Clause just doesn't matter, because it can achieve them by other valid means.
It's a separate question, of course, whether Congress should achieve the goals at all. Senator Cornyn went on to ask about this--with respect to the Gun Free School Zones Act (overturned as exceeding the Commerce Clause in United States v. Lopez), the civil damages provision in the Violence Against Women Act (overturned as exceeding the Commerce Clause and Section 5 of the Fourteenth Amendment in United States v. Morrison), and the individual health insurance mandate in the recent health care reform legislation (yet to reach the Supreme Court).
Could Congress achieve its policy goals in these areas by enacting a treaty and implementing it through legislation? Surely, every bit as much as it could under its spending power.
Whether it should is a question for Senator Cornyn, not Nominee Kagan.
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