Noel Canning cites Missouri v. Holland

I just noticed the rather gratuitous citation to Missouri v. Holland at the end of the Court’s opinion in Noel Canning. The Court quotes Holland for the proposition that the Constitution should be interpreted in light of “our whole experience”. Why reach for a bland quote from Holland to support this nebulous proposition – the first time that phrase from Holland has been quoted in a majority opinion in 70 years?

In 1920, Holland dubiously implied that a treaty can increase the legislative power of Congress. Just last month, in Bond v. United States, Justice Scalia, joined by Justice Thomas, persuasively disparaged Holland  (and his critique went unanswered, because the majority opinion decided the case on statutory grounds). Is Justice Breyer quoting Missouri v. Holland to signal that, in his view, Holland does and should remain good law? Is he worried that its days may be numbered? Is he testing to see whether Justice Kennedy would balk at the cite?

Nicholas Quinn Rosenkranz is a Professor of Law at Georgetown, a Senior Fellow in Constitutional Studies at the Cato Institute, and an occasional Broadway producer.

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