Hathaway et al.: The Treaty Power: Its History, Scope, and Limits

Oona A. Hathaway (Yale Univ. - Law), Spencer E. Amdur, Celia Choy, Samir Deger-Sen, Haley Nix, Eric John G. Paredes & Sally Pei have posted The Treaty Power: Its History, Scope, and Limits (Cornell Law Review, forthcoming). Here's the abstract:

This article examines the scope of the treaty power under the U.S. Constitution. A recent challenge in the courts has revived a debate over the reach and limits of the federal government’s treaty power that dates to the Founding. This article begins by placing today’s debate into historical perspective — examining the understanding of the treaty power from the time of the Founding, through the Supreme Court’s landmark decision in 1920 in Missouri v. Holland, up to the present. It then provides a systematic account of the actual and potential court-enforced limits on the treaty power — including affirmative constitutional limits, limits on implementing legislation, and limits on the scope of the Article II treaty power itself. In the process, the article develops a detailed pretext test that courts could use to assess whether the federal government has exceeded its Article II authority. Because even this elaborated pretext test is unlikely to be used to invalidate many treaties, the most important protection against abuse of the treaty power lies in the structural, political, and diplomatic checks on the exercise of the power itself — checks that the article describes and assesses. These checks provide for what the article terms “top-down” and “bottom-up” federalism accommodation. The result is a flexible system in which state and federal governments work together to preserve the boundary between their respective areas of sovereignty. The article concludes that this flexible system of accommodation is likely to be more effective than any court-enforced restraint at protecting against abuse of the federal treaty power.