The Treaty Power and American Federalism, Part II

In an article published in this Review two years ago, I described and critiqued what I called the “nationalist view” of the treaty power. 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. Invoking constitutional text, structure, precedent, and history, Golove attempts to set forth a broad-based defense of the nationalist view. Notwithstanding our disagreements, there is much in Golove’s article that I admire, and it is certainly an important contribution to the debate over the scope of the treaty power. Golove’s historical narrative, while not without its difficulties, is particularly enlightening and reflects a prodigious amount of research. Unfortunately, the historical portion of the article is book-ended with discussions that are rather polemical and exaggerated in tone and substance. More importantly, those who were looking for a full debate between Golove and myself over the scope of the treaty power are likely to be disappointed. Golove’s article, even with its historical discussion, largely fails to engage my critique of the nationalist view. In this reply, I will make four points. First, despite claiming to do so, Golove’s article does not in fact defend the nationalist view that I critiqued. Second, Golove’s proposed subject matter limitation on the treaty power reflects a false assumption about the views of other foreign affairs scholars and, more importantly, lacks any meaningful content. Third, Golove purports to accept the Supreme Court’s recent federalism decisions as a baseline, but much of his analysis is inconsistent with those decisions. Finally, Golove’s historical discussion, while rich in detail, is both methodologically inconsistent and tendentious.