Can treaties confer on Congress powers otherwise not conferred by the Constitution?

Profs. Rick Pildes and Nicholas Rosenkranz have been debating the topic at Volokh Conspiracy [Pildes first, second; Rosenkranz first, second; more] The pending case of Bond v. U.S. will give the U.S. Supreme Court the chance to revisit Missouri v. Holland, the main precedent on the point [Julian Ku, Ilya Somin, Gerard Magliocca/Concur Op, Michael Greve, earlier here and here] More: Curtis Bradley, Lawfare.


  • Why don’t America’s politicians sign a treaty w England or Japan or Thailand, etc. to reinstate monarchy.

    Solves ALL of those pesky Bill of Rights impediments at once.

  • There are no pesky Bill of RIghts left. We have indefinite detention, assasination of Americans, torture, and rendition. If you post something on a website that a suspected terrorist also posts something at, you are guilty of conspiring with the enemy.

    With Justice Scalia’s “drug war exception” to the Constitution the government can do anything they want by just saying they smell marijuana. We have Mexican commandos training with U.S. commandos to enforce federal marijuana laws.

    Some people want to keep their guns to protect themselves against tyranny, but the problem is we have already gone past tyranny and it is just a matter of time before all of this gets shut down.

  • To answer the headline question: No, no they can’t.

    The Congress can not strip religious liberty because the President signs and the Senate ratifies a treaty with India to make defamation of Hinduism a crime. The Congress can not quarter hordes of Pakistani (just picked them instead of Canada since it illustrates the point better) solders in private homes in Duluth, Dallas or Miami because the President signs and the Senate ratifies a treaty. The Congress can not strip the right to be secure in ones home without warrant because the President signs and the Senate ratifies a treaty with Mexico to allow Mexican commando’s to pursue their drug gangs into Texas, New Mexico, Arizona and California.

    Sorry, it just don’t wash.

  • The Executive Branch has already stripped religious liberty with their war on sacred rituals that the DEA didn’t like. Most of the remaining churches that weren’t destroyed by the DEA were tricked into becoming objects of the State under IRS 501(c)(3) and volunarily gave up their religious freedom.

    Meanwhile, Mexican commandos are training U.S. commandos at U.S. Army Northern Command’s headquarters in Colorado how to conduct a bloody drug war enforcing federal marijuana law.

    And by sheer coincidence on the same day that Governor Jay Inslee of Washington was meeting with US AG Eric Holder to discuss marijuana legalization, a federal appeals court ruled that marijuana is still a very dangerous drug classified as Schedule I.