Executing the Treaty Power

Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867 (2005)

Argues against Missouri v. Holland's view that Congress has the power to execute any treaty the President enters the country into, even if Congress wouldn't have the power to create that law without the existence of a treaty. This is problematic to Rosenkranz (and I agree) because the executive is unchained from Constitutional limits when negotiating treaties.

It's quite a good article, persuasively argued, and it made me think twice about arguing that the executive should in fact be limited when negotiating treaties. He gives a sort of doomsday example where the U.S. is losing a disastrous war when it is offered a peace treaty that would be fine except it violates the Fifth Amendment (or something -- Rosenkranz's example has something about using military commissions to try civilians). If the President could not enter such a treaty, then the familiar adage that the Constitution is not a suicide pact would be violated. I'd rather consider the example of the Constitutional violation being structural rather than individual-rights based (or internal rather than external), but the argument is the same -- we must allow the President to enter into these treaties.

So the question for me becomes, "How can the President be unchained from Article I limits in negotiating treaties if I am arguing that the courts are not so unchained when executing the judicial power?" The answer I have is that the President has a set of powers, conveniently located in Section 2 of Article II, that are not subsidiary to the legislative powers. That is, the executive has the basic duty to execute the law, but it also has certain other enumerated powers, including appointments and pardons. The judiciary, by contrast, has no power that is not subsidiary to the legislative powers. Thus it makes sense to limit the judiciary's actions by reference to the Article I limits while not doing the same when the executive exercises its Art. II, Section 2 powers.

(This subsidiary argument also derives from Rosenkranz's paper -- see 1895.)

Citing references

Duncan B. Hollis, Executive Federalism: Forging New Federalist Constraints on the Treaty Power, 79 S. Cal. L. Rev. 1327 (2006)