Revisiting the Treaty Power?

Ilya Somin notes that Bond v. United States could possibly be going back to the Supreme Court, with a question that raises the Treaty Power of the United States. The treaty power is currently interpreted by the Courts to be an independent power that can be separately exercised from Congresses other enumerated powers, so the normal federalism limits don’t apply when it comes to a treaty. No treaty can stomp on the Bill of Rights, but beyond that the treaty power is fairly unlimited. I agree with Prof. Somin that this presents a problem:

I think the power to make treaties is best understood as a power allowing the federal government to make commitments regarding the use of its other enumerated powers, not a power that allows the federal government to legislate on whatever subjects it wants, so long as the issue is covered by a treaty. Among other things, the latter would enable the federal government to circumvent limits on the scope of its power by paying off a foreign power (e.g. – a weak client state dependent on US aid) to sign a treaty covering the subject.

I’d love to see the Supreme Court revisit this topic, and hold the treaty power can only be exercised within the scope of Congress’ other enumerated powers, but this would call a number of treaties into question, including those that affect hunting. I tend to think the Court will be cautious about a ruling that would affect current treaties.

The landmark ruling that lead to Congress’ treaty power being interpreted this way was Missouri v. Holland, which upheld the Migratory Bird Treaty Act of 1918. Since then the Courts have tended to limit this power. Of course, Missouri v. Holland was decided in 1920, when the scope of the federal governments enumerated powers were considerably more constricted, so today it would probably be possible to argue that the 1918 treaty is a legitimate exercise of Congress’ enumerated powers, and is therefore still constitutional, even if the Court decides to further limit the treaty power.