“Great substantive and independent power” and the limits of the treaty power

June 3, 2014

You will have to wait a little while for my more extended thoughts on Bond v. United States, which I’m writing an essay on this summer.

But for now I just wanted to note one other important and interesting theme that appeared in Justice Scalia’s opinion — the idea of “great substantive and independent powers,” which are beyond the scope of the Necessary and Proper Clause. As Justice Scalia puts it:

Holland places Congress only one treaty away from acquiring a general police power. The Necessary and Proper Clause cannot bear such weight. As Chief Justice Marshall said regarding it, no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.” McCulloch v. Maryland, 4 Wheat. 316, 411 (1819); see Baude, Rethinking the Federal Eminent Domain Power, 122 Yale L.J. 1738, 1749–1755 (2013). No law that flattens the principle of state sovereignty, whether or not “necessary,” can be said to be “proper.” As an old, well-known treatise put it, “it would not be a proper or constitutional exercise of the treaty-making power to provide that Congress should have a general legislative authority over a subject which has not been given it by the Constitution.” 1 W. Willoughby, The Constitutional Law of the United States § 216, p. 504 (1910).

After the oral argument, I noted that versions of this theme had emerged in the briefs and at oral argument, and I’m glad to see some members of the Court continuing to raise them — even if the majority concluded that they weren’t needed to resolve the case.

I need to think a little bit more about exactly what argument Justice Scalia is making here. This passage comes after the section titled “text,” in which he adopts Nick’s view that the Necessary and Proper Clause is limited to carrying into execution the power to make treaties, rather than the treaties themselves. In this section, Justice Scalia is instead talking about “structure,” and it’s unclear how much the arguments overlap.

Justice Scalia might mean something like: At a structural level, we know that the Necessary and Proper Clause can’t be interpreted to give the federal government a general police power, even if such a general power satisfied the test for necessity and usefulness. That is because the general police power is a “great power” carved out of the scope of the Necessary and Proper Clause.

How does that structural principle apply to the case? One possibility is that it is irrelevant, because Section 229 can be justified without needing something as broad as the federal police power. But Justice Scalia seems to think that the anti-police-power principle serves as a backdrop that helps to show why the Rosenkranz interpretation of the Treaty Power is the more reasonable one, even apart from the text. I’m still thinking through this part, and I welcome further thoughts.

Also worth reading, though they are not on the same question, are this post by Jean Galbraith and this one by Curtis Bradley.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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