Misguided Federalism

Peter J. Henning, Misguided Federalism, 68 Mo. L. Rev. 389 (2003)

There were apparently a spate of cases saying that prosecuting people under federal statutes with jurisdictional elements when the jurisdictional element wasn't met was a violation of the executive power. Henning argues that this is "misguided". He says that federalism limits just don't apply to the executive's power to apply the law.

Note how this is different from the treaty power stuff discussed below: the power to apply the law isn't one of those things listed in Section 2; thus I disagree with Henning because I think the executive's other powers, the non-Section 2 powers, are subservient to the legislative powers and thus are limited in the same way. If Congress cannot legislate beyond the bounds of interstate commerce, how can the Dept. of Justice claim the authority to prosecute people outside those bounds? (Not just statutory authority, note, but Constitutional authority.)

"Federalism is an issue of congressional power to enact regulations that operate on the states directly in their role as sovereigns, and not one of whether the federal government can exercise its power over individuals." (399)

Henning phrases the executive's power as being one to apply valid laws. Thus, since these laws with jurisdictional elements are valid, the executive can apply them. But that's taking a pure facial perspective on things. Look at this from the as-applied perspective -- laws aren't valid or not valid, they can be used validly and invalidly. In this case, the question is whether the executive is using the law validly, i.e. whether it's constitutional to apply the law to this particular defendant. If that defendant doesn't meet the jurisdictional element, I say "no". (Here is where O'Connor's argument about Lopez and Morrison merely being "drafting guides" comes in -- if Henning's argument is right, if all Congress need do is put in a jurisdictional element and then let the whole world run its course, then those cases really do become drafting guides, not actual limitations on federal power. (Of course, as a practical matter, the limits are real, because a case outside the jurisdictional element will be dismissed, on the grounds of failure to state a claim or the equivalent in the criminal context. But that doesn't mean that we should ignore the structural problems created by corner cases.))

Henning also oddly seems to separate the idea of "federalism" from the Commerce Clause -- I've conceived of the Commerce Clause as one of many implementations, in the Constitution and elsewhere, of the concept of federalism. It's not clear why Henning treats them as seemingly distinct entities. (Or maybe I've overread his language to mean something it doesn't.) He talks about the language about "truly local vs. truly national" as being about federalism, and economic language as being about commerce. I, on the other hand, had always read the "truly local" language as merely being a restatement of the limitation that Commerce imposes, that is that Congress can't reach the "truly local" because it isn't involved in interstate commerce. There's reasonable disagreement to be had there. Similarly, the language about family law and violent crimes being beyond federal reach I read as statements that these things fall outside the Commerce power, not that they are outside of federal reach because of some nontextual federalism reasons, which is how Henning reads that language.

Henning reads Lopez's request for a jurisdictional element as wanting to "provide[] some measure of comfort that the particular prosecution embodies the interests of the national government." (430) Again, I disagree -- I think the value of jurisdictional elements is in the fact that they provide an ironclad guarantee that the federal power will not be exceeded, not by Congress, not by the courts, and not by the executive.

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)