Although the President has the authority to create and sign treaties, he must do so with the “advice and consent of the senate.” Just as the commerce clause, and taxing power, treaties have been used to regulate national affairs as well as foreign affairs. The question presented below is how far the government can use the treaty power to affect activities that would otherwise not be within their power (lacking from the enumerated powers).

Missouri v. Holland

252 U.S. 416 (1920).


Is the treaty forbidden by the tenth amendment?


If the treaty is valid, any statutes arising under the treaty is valid. The treaty is valid if it does not infringe on any Constitutional provisions.


The treaty does not infringe on any constitutional provisions. As such, the treaty and associated statute is valid.


In 1916, the President created a treaty with Great Britain which stated several migratory species of birds that were protected and that there should be efforts made by Canada and the United States to protect those birds. The act was not self-executing (Acts needed to be made by Congress to fulfill their part of the deal). As a result, Congress passed the Migratory Bird Act in 1918 to protect those species, pursuant to the act.

Missouri brought a bill to say that the statute was unconstitutional because it infringed on the state’s rights reserved by the Tenth Amendment.


Ultimately, the question comes down to the treaty being constitutional. This is because if the treaty is Constitutional, any acts made under the treaty would be a necessary and proper way of enforcing the treaty.

Here, the treaty is Constitutional. One important note is that the treaty power is different than other Congressional powers. A treaty can still be valid even if a congressional power enforcing the same law is invalid. All that needs to exist is a relationship between the convening nations, a national interest, and a treaty that does not infringe any limitations set by the Constitution.

Additional Notes

Missouri was relying on a case that said Congress did not have the authority to regulate species within a state. However, the referenced case referenced to was made without the a treaty. Here, there was a treaty to go along with it. Interestingly, the language in the treaty and the statute could have had the exact same language and the treaty could be found constitutional while the statute could not.

The difference is that a Treaty is an embodiment of the national will more than a statute. Additionally, treaties are largely significant, dealing with high security matters to ensuring foreign relations. Thus, the fact that a law is connected to a treaty is enough to make it constitutional.


  1. A law may not be constitutional when not attached to a treaty but is with a treaty.
  2. Congress has a strong interest in upholding foreign commitments, maybe so much that it overcomes 10th Amendment objections.
  3. The treaty law has the ability to give Congress more power to do things than other domestic provisions. But see Bond v. United States, 134 S. Ct. 2077 (2014) (holding that the treaty was unrelated to the indictment).
Medellin v. Texas

552 U.S. 491 (2008).

Medellin had committed a murder in Texas. He confessed after he had been read his Miranda rights but was not read rights under the Vienna Convention which said that he could have the opportunity to meet with an official from Mexico. The claim here is that the rights of this individual was violated under these treatises.

However, the Texas court ruled that this is not a self-executing treaty. In other words, a treaty that is not self-executing does not have any effect if there are no statutes made to implement the treaty. Here, there were no requirements created by the government to implement the treaty.

In other words, there was a treaty present, but no implementing statutes. As such, because the United States has a presumption against self-executing treaties, the court adopted Texas’s argument.

However, the dissent argues that treaties have been seen as self-executing in the past and other authorities have sought the enforcement of the treaty.

Majority – technical (formalistic). Dissent – functional.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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