The Treaty Paradox

[A18]

The Slave Trade Clause famously declares that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person." U.S. Const., Art. I, Sect. 9, cl. 1.

A masterly command of euphemism, no? But that isn't the only remarkable thing about this clause. Still more remarkable was its Article V entrenchment: "[N]o Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first . . . Clause[] in the Ninth Section of the first Article."

Prior to the year 1808, then, it would seem that the national government was literally powerless (as a matter of law, anyway) to interfere with the slave trade. Even a constitutional amendment could not effect this.*

But notice that the Slave Trade Clause, by its own terms, applies only to "the Congress." It is doubtful whether anyone could claim with a straight face that a treaty is an act of Congress. Treaties are made by the president, "by and with the Advice and Consent of the Senate" (with the important limitation that two-thirds of senators present must concur).

Suppose we turn back the clock to the year (say) 1800. In our fantasy world, the United States signs on to a treaty that categorically forbids any signatory from importing slaves.** The treaty is ratified in perfect conformity with Article II, and the federal government moves to immediately enforce it as self-executing "supreme Law of the Land."

Constitutional or unconstitutional? A finding of constitutionality, as much as we would like it, is very counterintuitive in light of the extraordinary protection of Article V.

I have chosen the Slave Trade Clause for a reason. Morally repugnant as it is to us today, its Article V "super-entrenchment" makes it a prime candidate for this reductio ad absurdum. But the same basic analysis applies to the more popular First Amendment, which begins "Congress shall make no law..." (Our platonic guardians on the Supreme Court have assured us that "due process of law" encompass virtually all of the guarantees in the Bill of Rights, including this one. But that seems indefensible as a matter of constitutional interpretation, as opposed to raw decree.)

One way out of this conundrum is to repudiate the theory of self-executing treaties. In the absence of an implementing statute, the argument would go, no treaty can ever be enforceable as domestic law. Another argument might try to find some intrinsic limitation on the treaty-making power itself.

For now, I offer no conclusions; this post is long enough as it is. Someone else can have the first word on the merits.

------

*--Well, absent repealing that provision of Article V, and then moving on to repeal the Slave Trade Clause. But even the former might have been an amendment that "in any Manner affect[ed]" the clause; it would have "affect[ed]" it by removing its entrenchment.
**--Yes, I mean the people as well.

[Kaine for Senate '18]

This seems right to me; I doubt the treaty would be ratified, but it seems Constitutional in and of itself.

[True Federalist (진정한 연방 주의자)]

Since the ratification of a treaty requires the assent of one branch of Congress, I would argue that a treaty that contravenes Article I Section 9 cannot be constitutionally ratified in the first place.

The reasons for restricting the treaty ratification to the Senate, is that treaties are agreements between States, and the Senate represents the States of the United States thus making it the proper body to make agreements with States that are not part of the United States.  The President's treaty role is executive in that he conducts the negotiations on behalf of the Senate.

Even if one accept the view that a treaty can contravene Article I Section 9, it could only do so in the context of an agreement within the scope of a treaty.  Thus for example, the Senate might be able to ratify a treaty with the Kingdom of Kongo, that no national of that Kingdom could not be imported as property, but it could not make an agreement that would bar importation of all persons as property from everywhere unless it made a treaty with every single sovereign realm.

[Emsworth]

The Slave Trade Clause, by its own terms, applies only to Congress. The clause does not, therefore, restrict the President's treaty-making power. Nevertheless, I would hold that a treaty purporting to prohibit individuals from engaging in the slave trade would be unconstitutional, or at the very least non-self-executing.

The power to "regulate Commerce with foreign Nations" is expressly vested in Congress by Art. I, Sec. 8, Cl. 3. Furthermore, the regulation of international commerce is very clearly a "legislative power," and "all legislative powers" are vested in Congress by Art. I, Sec. 1. I would argue that, if a power is vested in Congress, then the President may not exercise that same power, by ratifying a treaty or otherwise. Thus, a treaty may not prohibit the slave trade (since such a prohibition is a regulation of international commerce).

Whether any treaty at all can be self-executing is a very difficult question. The answer is not immediately clear from the text of the Constitution. I'll try to make another post on the subject sometime soon.

[J. J.]

The Slave Trade Clause, by its own terms, applies only to Congress. The clause does not, therefore, restrict the President's treaty-making power. Nevertheless, I would hold that a treaty purporting to prohibit individuals from engaging in the slave trade would be unconstitutional, or at the very least non-self-executing.

The power to "regulate Commerce with foreign Nations" is expressly vested in Congress by Art. I, Sec. 8, Cl. 3. Furthermore, the regulation of international commerce is very clearly a "legislative power," and "all legislative powers" are vested in Congress by Art. I, Sec. 1. I would argue that, if a power is vested in Congress, then the President may not exercise that same power, by ratifying a treaty or otherwise. Thus, a treaty may not prohibit the slave trade (since such a prohibition is a regulation of international commerce).

Whether any treaty at all can be self-executing is a very difficult question. The answer is not immediately clear from the text of the Constitution. I'll try to make another post on the subject sometime soon.

I think this might have some bearing on the subject:  http://en.wikipedia.org/wiki/Moors_Sundry_Act_of_1790#cite_note-0

The SC state legislature found that a freeborn citizen of an allied nation could not be subject the "Negro Laws" even if they happened to be black.

In looking at the Federalist 64, treaties seem to be elevated to a level equal to the Constitution, a treaty that said countries could not engage in the slave trade, or a treaty saying that no county shall permit slavery, would be constitutional.

[minionofmidas]

There are a number of issues where US-ratified treaties concern issues the feds usually don't get involved in, and that are sometimes blatantly ignored by the States. Same thing happens in a Germany up to a point. And probably in every genuinely (ie, not India) federal country.

[Emsworth]

The SC state legislature found that a freeborn citizen of an allied nation could not be subject the "Negro Laws" even if they happened to be black.

How is this law relevant to my claim that the treaty-making power cannot overlap with the legislative power of Congress?

You must be logged in to read this quote.

Treaties are not on a "level equal to the Constitution." The Constitution expressly provides for a few methods of amendment, and treaty-making is not one of them. Furthermore, under the supremacy clause, treaties are only the supreme law of the land if they are made under the "authority" of the United States. That authority has only one source: the Constitution itself. Thus, treaties are, just like acts of Congress, subject to constitutional restrictions.

[J. J.]

The SC state legislature found that a freeborn citizen of an allied nation could not be subject the "Negro Laws" even if they happened to be black.

How is this law relevant to my claim that the treaty-making power cannot overlap with the legislative power of Congress?

It show that a state legislature, one that, a few years later, was willing to nullify federal statute, would recognize the primacy of a treaty between the US and foreign power.

You must be logged in to read this quote.

The constitution requirement for a treaty has been met.  As you have pointed out, the clause only applies to Congress making a statute, not to the Senate approving a treaty.  Even in the context of the time, that distinction seems to have been recognized.

[Emsworth]

It show that a state legislature, one that, a few years later, was willing to nullify federal statute, would recognize the primacy of a treaty between the US and foreign power.

I definitely agree that a treaty supersedes state law. There is no need to cite historical events; the text of the Constitution is clear enough to resolve the issue. Under the supremacy clause, treaties made under the authority of the United States are the supreme law of the land, any state law to the contrary notwithstanding.

But this discussion is not about whether valid treaties trump state law. The dispute is about whether a particular treaty--a treaty purporting to abolish the slave trade--is valid in the first place. If it is valid, then state laws to the contrary are void, but it must first be established that the treaty is constitutional.

Clearly, there must be some limits to the treaty power, beyond the requirement that the Senate advise and consent by a two-thirds majority. Could a treaty impose taxes, or regulate the jurisdiction of the Supreme Court, or appropriate funds from the Treasury? I would think not. The power to abolish the slave trade, and the power to regulate international commerce more generally, is of the same ilk -- it is delegated to Congress, not the President.

[A18]

I would argue that, if a power is vested in Congress, then the President may not exercise that same power, by ratifying a treaty or otherwise. Thus, a treaty may not prohibit the slave trade (since such a prohibition is a regulation of international commerce).

I agree that this rule, if accepted, would resolve our slave-trade puzzle. Even so, it leaves much to be desired--at least by itself, and without more.

In the first place, it is somewhat odd to suppose that a treaty may do only and precisely those things that are placed beyond the reach of Congress by the enumerated powers scheme. May Congress adopt a treaty that provides (to use some purely random examples, of course) for a federal remedy for violence against women, or perhaps federal punishment for carrying a gun to school?

But let's set that aside. This construction (by itself) also seems to leave First Amendment freedoms at the mercy of treaty-makers. Suppose that, as a condition to the Louisiana Purchase, Napoleon insisted on a treaty provision barring any criticism of the French government (or, worse still, French wine?). In our fantasy world, President Jefferson and a sufficient supermajority in the Senate reluctantly agree. Because Congress has no authority, under the enumerated powers scheme, to interfere with speech and press within the various states, the president and the Senate may therefore (yes, therefore) adopt a treaty to do precisely that. And because the First Amendment commands only that "Congress shall make no law...," that treaty would be valid. (Ironically, the Article IV Property Clause might mean that freedom of speech and press were secure within the Louisiana territory itself. Go West, young man, indeed.)

In short, your rule makes sense out of the slave trade provisions. But it is not sufficient to make sense out of the broader constitutional structure.

[J. J.]

It show that a state legislature, one that, a few years later, was willing to nullify federal statute, would recognize the primacy of a treaty between the US and foreign power.

I definitely agree that a treaty supersedes state law. There is no need to cite historical events; the text of the Constitution is clear enough to resolve the issue. Under the supremacy clause, treaties made under the authority of the United States are the supreme law of the land, any state law to the contrary notwithstanding.

But this discussion is not about whether valid treaties trump state law. The dispute is about whether a particular treaty--a treaty purporting to abolish the slave trade--is valid in the first place. If it is valid, then state laws to the contrary are void, but it must first be established that the treaty is constitutional.

Clearly, there must be some limits to the treaty power, beyond the requirement that the Senate advise and consent by a two-thirds majority. Could a treaty impose taxes, or regulate the jurisdiction of the Supreme Court, or appropriate funds from the Treasury? I would think not. The power to abolish the slave trade, and the power to regulate international commerce more generally, is of the same ilk -- it is delegated to Congress, not the President.

We've seen some proposed treaties, e.g. ones relating to war crimes, that have not been ratified because they could permit US armed forces members to be tried by non US courts. 

I think a treaty banning the slave trade could have been constitutionally ratified and be in force.

[Emsworth]

In the first place, it is somewhat odd to suppose that a treaty may do only and precisely those things that are placed beyond the reach of Congress by the enumerated powers scheme.

That's not what I said. If a power is delegated to Congress, the President may not exercise it. As Cyrus King, congressman from Massachusetts, explained in 1815:

"[W]henever a treaty or convention does, by any of its provisions, encroach upon any of the enumerated powers vested by the Constitution in the Congress of the United States ... such treaty or convention, after being ratified, must be laid before Congress, and such provisions cannot be carried into effect without an act of Congress. For instance, whenever a treaty affected duties on imports, ... whenever a treaty went to regulate commerce with foreign nations, ... as the power to lay duties and the power to regulate commerce are expressly given to Congress, such provisions of such treaty must receive the sanction of Congress before they can be considered as obligatory and as part of the municipal law of this country."

However, the inverse of this rule is not true. Just because a power is not delegated to Congress, it does not follow that it must belong to the President. In other words, the non-inclusion of a power among the powers of Congress is a necessary condition for the exercise of that power by treaty; it is not a sufficient condition.

[A18]

That's not what I said. If a power is delegated to Congress, the President may not exercise it. ... However, the inverse of this rule is not true. Just because a power is not delegated to Congress, it does not follow that it must belong to the President. In other words, the non-inclusion of a power among the powers of Congress is a necessary condition for the exercise of that power by treaty; it is not a sufficient condition.

No, I realize you did not claim this was the sole limitation. That's why I included the phrases "by itself, and without more," "(by itself)," and "not sufficient." The purpose of my post was not so much to criticize your standard--indeed, I largely agree with your textual exegesis--but to point out its limits.

[Emsworth]

I think that at least one further limit on the treaty power is implicit in the Constitution: the treaty must affect, relate to, or concern the foreign sovereign with whom it is made. The United States may not make a (self-executing) treaty establishing a purely domestic rule, even if other countries agree to adopt the rule at the same time. Thus, for example, an international convention forbidding all child executions could not be self-executing.