The Treaty Power and the Necessary and Proper Clause

In my previous post, I argued that the Treaty Power should be interpreted as allowing the President and the Senate to make treaties that involve intercourse with foreign nations, but not simply domestic matters. In this post, I discuss the second constitutional issue raised by the decisions in Bond v. US – whether Congress has the authority under the Necessary and Proper Clause to pass legislation (outside of its other enumerated powers) that carries into execution a treaty. (As with my prior post, I note that I have not fully researched this issues and therefore my views should be regarded as preliminary.)

In analyzing this question, I will assume that the Treaty Power only allows treaties that involve intercourse with foreign nations. If that is true, there are at least two significant positions as to Congress’s authority to carry those treaties into execution:

1. Congress can only pass legislation under the Necessary and Proper Clause that carries into execution Congress’s other enumerated powers, but not the President and Senate’s Treaty Power.

2. Congress can pass legislation under the Necessary and Proper Clause that carries into execution the President and Senate’s Treaty Power.

The first position was articulated by Justice Scalia’s concurrence in Bond, and was joined by Justice Thomas. It was first developed by Nick Rosenkranz. Under this interpretation, while the President and Senate could enter a treaty that involved intercourse with foreign nations that extended beyond Congress’s enumerated powers, Congress could not pass legislation that carried that treaty into execution.

As an initial matter, this position seems strange. After all, a basic purpose of the Constitution was to allow for enforcement of US treaties throughout the country. If Congress could not carry into execution the treaty, then the main enforcement method would be to place the obligations into the treaty itself (which, if it is self executing, is the law of the land), but many provisions for enforcement, such as criminal penalties,are not typically placed into treaties.

One reason why one might read Congress’s authority narrowly is if one was concerned about the federalism implications of such authority. But if the Treaty Power is already confined to matters involving intercourse with foreign nations, one need not worry about Congress exercising unlimited authority. Instead, Congress would be restricted to enforcing treaties involving intercourse with foreign nations. And a check on expansive treaties would be that they required two thirds of the Senate to ratify – a Senate that was initially elected by the State legislatures and therefore was particularly representative of state interests.

The main argument for concluding that Congress does not have the power to enforce treaties is textual. From Justice Scalia’s concurrence:

Start with the phrase “to make Treaties.” A treaty is a contract with a foreign nation made, the Constitution states, by the President with the concurrence of “two thirds of the Senators present.” That is true of self-executing and non-self-executing treaties alike; the Constitution does not distinguish between the two. So, because the President and the Senate can enter into a non-self-executing compact with a foreign nation but can never by themselves (without the House) give that compact domestic effect through legislation, the power of the President and the Senate “to make” a Treaty cannot possibly mean to “enter into a compact with a foreign nation and then give that compact domesticlegal effect.” . . . Upon the President’s agreement and the Senate’s ratification, a treaty—no matter what kind—has been made and is not susceptible of any more making.

How might Congress have helped “carr[y]” the power to make the treaty—here, the Chemical Weapons Conven­tion—“into Execution”? In any number of ways. It could have appropriated money for hiring treaty negotiators, empowered the Department of State to appoint those negotiators, formed a commission to study the benefits and risks of entering into the agreement, or paid for abevy of spies to monitor the treaty-related deliberations of other potential signatories.

Once a treaty has been made, Congress’s power to do what is “necessary and proper” to assist the making of treaties drops out of the picture.

My sense of this textual interpretation is that it shows at best that the language is ambiguous. It is possible that Congress’s power to carry into execution the President’s (and Senate’s) Treaty Power was limited to negotiating the treaty and other related matters. But it is also possible it meant to enforce the actual treaty. It seems permissible to speak of carrying the power to make a treaty into execution by enforcing that treaty. This interpretation gains force from the fact that in England, the King made a treaty and the Parliament passed legislation enforcing it. This was certainly one model that the Framers might have been following.

Given the strong argument for allowing Congress to enforce treaties and the lack of a strong federalism argument against allowing it to do so, I would tentatively interpret this ambiguity in favor of the second interpretation.