Missouri v. Holland
The relationship between the treaty power and U.S. Federalism has been a recurring matter of controversy throughout the nation’s history. Article II, Section 2, of the Constitution gives the president the power, with the advice and consent of two-thirds of the Senate, to make treaties. The Supremacy Clause in Article VI of the Constitution provides that treaties that are made under the authority of the United States “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” Thus, like federal statutes and the Constitution itself, treaties can override inconsistent state law. The Constitution also expressly prohibits states from entering into treaties, thereby ensuring that the making of treaties is an exclusive prerogative of the national government.
Unlike Congress’s statutory powers, such as its power to regulate interstate and foreign commerce, the treaty power is not specifically limited to particular subject matters. Nor is it clear from the constitutional text whether or to what extent the treaty power is affected by the Tenth Amendment, which provides that “[t]he 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.” It is possible that the word “Treaties” in Article II carries with it implied limitations. If nothing else, the word would seem to require that there be an actual international agreement rather than a mere unilateral action by the president and Senate. At times, it has been suggested that the word also implies that the agreement must relate to a matter of international or reciprocal concern, but there is no consensus on either the existence or content of such a limitation.
The principal Supreme Court decision addressing the relationship between the treaty power and U.S. federalism is the Court’s 1920 decision in Missouri v. Holland. The Holland case concerned a federal statute, the Migratory Bird Treaty Act of 1918, which implemented a treaty between the United States and Great Britain providing for the protection of migratory birds in the United States and Canada. (Great Britain handled Canada’s foreign policy at that time.) Among other things, the act made it unlawful to hunt, capture, or sell any migratory birds covered by the terms of the Convention, except as allowed by regulations to be issued by the secretary of agriculture.
The State of Missouri sought to enjoin a federal game warden (Ray P. Holland) from enforcing the act, arguing that the act invaded the reserved powers of the states, in violation of the Tenth Amendment. In particular, Missouri argued that its reserved powers as a state included the authority to regulate wild game within its territory. It also pointed out that two federal district courts had found a similar migratory bird protection statute, which had been enacted before the treaty, to be beyond the scope of Congress’s powers.
The Court rejected Missouri’s argument. In an opinion by Justice Oliver Wendell Holmes Jr., the Court acknowledged that, in the absence of the treaty, the act might have exceeded Congress’s powers as they were then interpreted. The Court noted, however, that Congress is empowered in Article I, Section 8, of the Constitution to make laws that are necessary and proper to put into effect the constitutional powers of the other parts of the government. As a result, said the Court, “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.”
As for the validity of the treaty, the Court pointed out that the treaty did not “contravene any prohibitory words to be found in the Constitution” but rather was alleged to violate “some invisible radiation from the general terms of the Tenth Amendment.” To show that a treaty is invalid, however, the Court reasoned that “it is not enough to refer to the Tenth Amendment, because by Article II, § 2, the power to make treaties is delegated expressly.” The Court further observed that, whereas the Supremacy Clause states that federal statutes are the supreme law of the land when made in pursuance of the Constitution, it states that treaties are the supreme law of the land if they are made under the authority of the United States, and the Court noted that “it is open to question whether the authority of the United States means more than the formal acts prescribed to make the [treaty].”
The Court made clear, however, that it did “not mean to imply that there are no qualifications to the treaty-making power.” Rather, said the Court, these qualifications “must be ascertained in a different way” from the limitations on Congress’s powers. In support of this proposition, the Court expressed the view that “there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could.” In this case, according to the Court, the treaty addressed “a national interest of very nearly the first magnitude,” which could “be protected only by national action in concert with that of another power.”
The precise implications of Holland are not entirely clear. If nothing else, the decision appears to stand for the proposition that the treaty power can be used, at least in some instances, to regulate matters beyond the scope of Congress’s powers. There was some concern after this decision that the treaty power might not be subject to any constitutional limitations, including the limitations imposed by the Constitution’s individual rights provisions. This concern was due in part to the Court’s suggestion that, to be valid, a treaty might simply have to comply with the procedural requirements specified in Article II of the Constitution. The Supreme Court later made clear, however, that the Article II treaty power is subject to the individual rights protections of the Constitution.
In the 1950s, there was a vigorous effort, led by Senator John Bricker of Ohio, to limit the treaty power by means of a constitutional amendment. This effort was in part a response to the post–World War II development of international human rights treaties, which, because they regulated the ways in which governments interacted with their own citizens, were seen by some in the United States as a threat to the sovereignty of state governments. There were numerous versions of the “Bricker Amendment,” one of which would have overturned Holland by providing that “[a] treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of a treaty.” None of the versions of the Bricker Amendment was ever adopted, although one version came within one vote of being approved by the Senate. To help defeat the Bricker Amendment, the Eisenhower administration made clear to the Senate that it had no intention of using the treaty power to regulate domestic matters.
For many years after the Bricker Amendment controversy, the United States declined to ratify any of the major human rights treaties being developed by the international community. The Supreme Court’s expansive interpretations of Congress’s Commerce Clause and other powers in this period also made any potential gap between Congress’s powers and the treaty power largely academic. The Supreme Court’s imposition of federalism constraints on congressional power in the 1990s and the early part of the twenty-first century, and the United States’ ratification of a number of human rights treaties in the same period, revitalized debate over the validity and significance of Holland.
Curtis A. Bradley, “The Treaty Power and American Federalism,” Michigan Law Review 97 (1998): 390–461; David M. Golove, “Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power,” Michigan Law Review 98 (2000): 1075–319; Louis Henkin, Foreign Affairs and the United States Constitution (New York: Oxford University Press, 1996); and Charles A. Lofgren, “Missouri v. Holland in Historical Perspective,” Supreme Court Review (1975): 81–126.
Curtis A. Bradley
Last Updated: 2006
SEE ALSO: Commerce with Foreign Nations