Constitutional Law I War & Treaty Powers Feb. 24, 2006

Spring, 2006Con Law I - Manheim2 Constitutional War Powers Art. I, § 8: The Congress shall have power: to pay the debts and provide for the common defence To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies... To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia. Art. II, § 2: The president shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States;

Spring, 2006Con Law I - Manheim3 Other Sources of War Power Pre-constitutional Colonial Period  Continental Congress... exercised the powers of war and peace and finally adopted the Declaration of Independence. Revolutionary Period  Congress conducted all military operations Articles of Confederation  Article IX. The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war...--of sending and receiving ambassadors -- entering into treaties and alliances...

Spring, 2006Con Law I - Manheim4 War Power inheres in Sovereignty Extra-constitutional “the power to declare and carry on war are incidents of national sovereignty” Downes v. Bidwell (1901) “the power to declare and carry on war are incidents of... national sovereignty, and belong to all inde- pendent governments; [they do not] depend upon [any] affirmative grant of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.” US v. Curtiss-Wright (1936)

Spring, 2006Con Law I - Manheim5 Federalism & Foreign Affairs Const’l allocation betw. fed gov’t and states Tenth Amendment:  "That [the doctrine of enumerated powers] applies only to powers which the states had is self-evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source” Curtiss-Wright Conflict in the Chaco

Spring, 2006Con Law I - Manheim6 Federalism & Foreign Affairs Const’l allocation betw. fed gov’t and states Other limitations on state power Art. I, § 10, ¶ 1: "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal" Art. I, § 10, ¶ 3: “No state shall … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay" C46 CommandoFlying Tiger CW planes 1936

Spring, 2006Con Law I - Manheim7 Foreign Affairs Power of States Constitution: None As attribute of sovereignty: None “Power over external affairs is not shared by the States; it is vested in the national government exclusively.” US v. Pink (1942) "For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power.” Chinese Exclusion Cases (1889) "In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes the State of New York does not exist." US v. Belmont (1937)

Spring, 2006Con Law I - Manheim8 War Power of States Constitution: None Exception: Art. I, § 10, ¶ 3: States may “engage in War [if] actually invaded, or in such imminent Danger as will not admit of delay." Pre-constitutional: None "The states were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty, -- they could not make war, nor peace, nor alliances, nor treaties.

Spring, 2006Con Law I - Manheim9 Wood v. Miller (1948) Does War Power authorize rent control? Does necessary & proper clause apply?  Demobilization of veterans, war-created scarcity Even if not valid under commerce clause?  E.G. could congress regulate gun possession under War Power (notwithstanding Lopez)?

Spring, 2006Con Law I - Manheim10 Wood v. Miller (1948) When can cong’s War Power be exercised? Court defers on when war conditions end  Jackson (concurring): “I cannot accept the argument that war powers last as long as the effects and consequences of war, for if so they are permanent -- as permanent as the war debts.”

Spring, 2006Con Law I - Manheim11 Effect of Treaties International Effect Relations among states States have no status in foreign affairs Domestic Effect Treaties are “supreme law of the land” (Art. VI)  Preempt inconsistent state law  So long as the treaty is valid What test for determining validity of treaty? Made by president; ratified by Senate Any substantive (subject matter) limits?

Spring, 2006Con Law I - Manheim12 Missouri v. Holland (1920) Background Migratory Bird Act unconst’l (district court)  Exceeds Congress’ interstate commerce power Migratory Bird Treaty (US-GB)  agreed the 2 countries would propose to their lawmaking bodies the necessary measures for carrying the treaty out Migratory Bird Treaty Act  Does “necessary & proper” clause apply? Treaties are independent source of power Federalism concerns?

Spring, 2006Con Law I - Manheim13 Missouri v. Holland (1920) Holmes: “The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago. The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the 10 th Amd. We must consider what this country has become in deciding what that Amendment has reserved.”

Spring, 2006Con Law I - Manheim14 Validity of Treaties As a matter of international law Treaties must conform to international law  UN Charter; Geneva Convention on Treaties As a matter of constitutional law Must follow prescribed form Must be proper subject of international relations  Is the answer conclusively yes once another nation entreaties with the US? Explicit constitutional restrictions  Bill of Rights?  Article V (changing state boundaries)?  10th Amendment?

Spring, 2006Con Law I - Manheim15 Validity & Effect of Treaties Constitutional limits Bicker Amendment:  10th Am: no separate limitation on congress  Bill of Rights: these do limit congress Two classes of federal power External Effects  Int’l (not const’l) law governs relation of nations Internal Effects  Treaties typically not self-executing as domestic law  Usually followed by ordinary domestic legislation E.g., Migratory Bird Treaty Act

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