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Abstract

This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. If Congress alone can decide what a treaty means and what its enforcement requires, Congress may use the treaty to claim powers not contemplated by the treatymakers. Congress could thus invoke the treaty while circumventing the supermajority constraint on treatymaking. Third, therefore, courts should not defer fully to Congress in this matter; instead, they should assure that Congress’s actions do not exceed what is justified by the treaty. Although Congress has power to pass laws necessary and proper to preserve the United States’ reputation for treaty compliance, Congress must use this power in ways that do not unduly infringe federalism. In particular, this Article suggests two types of judicial limitations. Courts can make an independent assessment of the meaning of the treaty, including employing a presumption that treaties do not affect purely domestic matters. Courts can also review the necessity and propriety of Congress’s enforcement legislation, prominently including in this assessment whether enforcement of the treaty is appropriately done at the federal rather than the state level. As a result, Congress’s power to enforce treaties, while broad, need not be unlimited.

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