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Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo
Laws As Treaties?: The Constitutionality Of Congressional-Executive Agreements, John C. Yoo
Michigan Law Review
Only twice in the last century, in 1919 with the Treaty of Versailles, and two years ago with the comprehensive Nuclear Test-Ban Treaty, has the Senate rejected a significant treaty sought by the President. In both cases, the international agreement received support from a majority of the Senators, but failed to reach the two-thirds supermajority required by Article II, Section 2, of the Constitution. The failure of the Versailles Treaty resulted in a shattering defeat for President Wilson's vision of a new world order, based on collective security and led by the United States. Rejection of the Test-Ban Treaty amounted …
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
Michigan Law Review
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 …
Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove
Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove
Michigan Law Review
Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …