This Article addresses Congress’s prerogative to implement non-self-executing treaties. In construing Congress’s Necessary and Proper Clause authority in this area, most commentators have argued that it is either virtually plenary or virtually nugatory. I explore part of the vast middle ground. I assume as true Justice Scalia’s key argument in Bond v. United States, that implementing a treaty cannot be necessary and proper to making it, for it is completely made once the president ratifies it. Though this appears to eliminate congressional authority, I argue that Congress derives treaty-implementation power from the Necessary and Proper Clause because implementing current treaties facilitates making future beneficial treaties. Implementing a treaty need not be necessary and proper to making that treaty because it is necessary and proper to making future ones. Congress’s power to implement treaties is not unlimited, however, and the approach herein expects it to account for its efforts to accommodate state interests.
Download this file (download.pdf)download502 Kb
© 2009 - 2021 - Centro Studi sul Federalismo - Codice Fiscale 94067130016