The Treaty Power and American Federalism, Part II

Abstract

In an article published in this Review two years ago, I described and critiqued what I called the of the treaty power.1 Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this view was, among other things, inconsistent with the limited and enumerated powers structure of the U.S. Constitution. I also argued that this inconsistency was becoming more significant, as the range of treatymaking has expanded and as the Supreme Court has given new life to federalism restraints in the domestic arena. Recently, Professor David Golove published a 240-page article in this Review that takes issue with much of my analysis.2 Invoking constitutional text, structure, precedent, and history, Golove attempts to set forth a broad-based defense of the nationalist view. Notwith-