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Senator Ted Cruz: Limits On The Treaty Power [Harvard Law Review]
The Volokh Conspiracy ^ | January 11, 2014 | Nick Rosenkranz

Posted on 01/11/2014 11:52:08 AM PST by Cincinatus' Wife

Senator Ted Cruz has an excellent essay in the Harvard Law Review Forum entitled Limits on the Treaty Power. Here is a taste:

The Necessary and Proper Clause does not give Congress power to implement treaties in a way that contravenes the structural limitations on the federal government’s powers …. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people.

Cruz thus argues that Justice Holmes’s opinion in Missouri v. Holland must be limited to its facts, or else overruled. Regular readers know that I entirely agree.

It is quite unusual for a sitting senator to publish original legal scholarship. And it is doubly unusual for a senator to, in effect, argue for constitutional limits on his own power. Read the whole thing.


TOPICS: Government; History; Politics; Society
KEYWORDS: cruz; harvardreview; sovereignty; tedcruz; treaties; treatypower
Meanwhile Ben Jacobs at the Daily Beast says: In Harvard Law Review, Ted Cruz Blows Dog Whistle for Conspiracy Nuts "........the genius of Ted Cruz is that he launched a 10,000-word broadside, replete with 181 footnotes, against the scale and scope of the modern federal government this week in a publication considered by many to be the bastion of liberal elitism—the Harvard Law Review. In the article, one can see within the essay appeals to those on the far right concerned about Agenda 21, NAFTA superhighways, or any of a range of other conspiracy theories, yet all buried within the tight legal argument and presented in a high-minded way that passes muster in Cambridge, Mass."...........
1 posted on 01/11/2014 11:52:08 AM PST by Cincinatus' Wife
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To: Cincinatus' Wife

and treaties do not override the Constitution

if they try, they need to face a coup or revolution


2 posted on 01/11/2014 11:54:42 AM PST by GeronL (Extra Large Cheesy Over-Stuffed Hobbit)
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To: Cincinatus' Wife
yet all buried within the tight legal argument and presented in a high-minded way that passes muster in Cambridge, Mass

Cruz played on their playground, kicked their snooty tails and they're not happy. Go Cruz!

3 posted on 01/11/2014 12:03:14 PM PST by Irenic (The pencil sharpener and Elmer's glue is put away-- we've lost the red wheel barrow)
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To: GeronL

VI. Conclusion

Sovereignty should be the touchstone of any debate over the limits on the treaty power. The President should not be able to make any treaty — and Congress should not be able to implement any treaty — in a way that displaces the sovereignty reserved to the states or to the people. To hold otherwise would be to undermine the constitutional structure created at the nation’s founding. This principle was most clearly enshrined in the Tenth Amendment. But even before the Bill of Rights was created, the Constitution painstakingly enumerated the limited powers of the federal government on the basis that states would retain authority in a system of dual sovereignty. Because “we must never forget that it is a constitution we are expounding,” the Court must remember the Constitution’s “great outlines” and “important objects.”181 The Framers’ genius in dividing sovereign authority between the federal and state governments certainly qualifies as one of the great outlines and important objects that Chief Justice Marshall deemed necessary for interpreting the Constitution. Dual sovereignty therefore properly constrains the federal government’s treaty power.


4 posted on 01/11/2014 12:03:16 PM PST by Cincinatus' Wife
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To: Irenic

:)


5 posted on 01/11/2014 12:03:59 PM PST by Cincinatus' Wife
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To: SoConPubbie

Cruz ping.


6 posted on 01/11/2014 12:04:47 PM PST by upchuck (My Internet addiction is so bad... it's alt of ctrl.)
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To: Cincinatus' Wife

Delicious, isn’t it? We don’t get very many treats nowadays but this certainly is one!


7 posted on 01/11/2014 12:06:35 PM PST by Irenic (The pencil sharpener and Elmer's glue is put away-- we've lost the red wheel barrow)
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To: Irenic

I was just thinking something similar.

It’s so nice for a change to have someone who has our back and who knows how to deliver a good “punch” and where to aim.


8 posted on 01/11/2014 12:09:10 PM PST by Cincinatus' Wife
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To: Cincinatus' Wife

bump


9 posted on 01/11/2014 12:12:33 PM PST by GeronL (Extra Large Cheesy Over-Stuffed Hobbit)
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To: Cincinatus' Wife

Thanks.


10 posted on 01/11/2014 12:15:31 PM PST by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: Cincinatus' Wife; GeronL; Irenic; upchuck
Single Paragraph argument/proof:
Much of the Constitutional confusion comes about from a failure to understand authority, as Jesus said:
The servant is not greater than his lord; neither he that is sent greater than he that sent him. — John 13:16
So then, something enacted under power/authority granted by the Constitution cannot exceed the Constitution itself. Moreover, if the Constitution restricts that authority, then the attempt to seize such is nothing short of rebellion.

11 posted on 01/11/2014 12:18:31 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: freekitty

For a bit of fun go read some of the comments at the Daily Beast. [Link in first comment above].


12 posted on 01/11/2014 12:18:43 PM PST by Cincinatus' Wife
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To: Cincinatus' Wife

The Harvard law Review. I’ve heard of this. Is there any other politicians that we can read what they have written in there?


13 posted on 01/11/2014 12:21:56 PM PST by Lurkina.n.Learnin (This is not just stupid, we're talking Democrat stupid here.)
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To: GeronL; Cincinatus' Wife

This is a good example of exactly what I’ve been talking about the past year: States do no have rights but they have Powers per the U.S.Constitution, and those powers are those not expressly retained by the Federal Government.

Marriage, the right to privacy (abortion), and medicine are not mentioned in the U.S.Constitution. Therefore DOMA was a stupid piece of legislation as well as the ACA (Obamacare), and there does not exist a right to privacy so one can kill one’s children, born or unborn.

Marriage and medicine is regulated by the several States because the U.S.Constitution doesn’t retain that power for the Federal Government.


14 posted on 01/11/2014 12:25:06 PM PST by SatinDoll (A NATURAL BORN CITIZEN IS BORN IN THE USA OF USA CITIZEN PARENTS)
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To: Cincinatus' Wife

Cruz is a genius and a scholar. A great man. But will he have to corrupt himself to get elected at the national stage?


15 posted on 01/11/2014 12:28:34 PM PST by LowTaxesEqualsProsperity
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To: LowTaxesEqualsProsperity

It looks like he has a good shot at raising the IQ of the nation.


16 posted on 01/11/2014 12:32:46 PM PST by Cincinatus' Wife
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To: GeronL

17 posted on 01/11/2014 1:10:38 PM PST by B4Ranch (Name your illness, do a Google & YouTube search with "hydrogen peroxide". Do it and be surprised.)
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To: Cincinatus' Wife
But even before the Bill of Rights was created, the Constitution painstakingly enumerated the limited powers of the federal government on the basis that states would retain authority in a system of dual sovereignty.

".............that states would retain authority................". Of what value is retention if 'the exercise of' is lacking? The prevailing agenda seems to accept the federal government telling the states to drop their trousers and the states not only do it but even provide additional accommodation by asking at what angle should they bend over.............

18 posted on 01/11/2014 1:14:56 PM PST by varon (Para bellum)
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To: varon

Not quite.

Some 24 or so states refused medicaid expansion [Obamacare].

Texas has sued the Feds so many times I’ve lost count [and won quite a few times].

There are examples.


19 posted on 01/11/2014 1:28:57 PM PST by Cincinatus' Wife
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To: varon; Cincinatus' Wife
accept the federal government telling the states to drop their trousers

Enabled and perpetuated by the 17th Amendment. It must go. As the last hundred years show, our Bill of Rights mean little if not backed up with the structure to enforce them.

20 posted on 01/11/2014 1:35:09 PM PST by Jacquerie (Article V.)
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To: Cincinatus' Wife
Because “we must never forget that it is a constitution we are expounding,” the Court must remember the Constitution’s “great outlines” and “important objects.” The Framers’ genius in dividing sovereign authority between the federal and state governments certainly qualifies as one of the great outlines and important objects that Chief Justice Marshall deemed necessary for interpreting the Constitution.

"Great outlines" and "important objects". Now, there's some aura and penumbra I can appreciate.

21 posted on 01/11/2014 1:44:27 PM PST by okie01 (The Mainstream Media -- IGNORANCE ON PARADE)
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To: Cincinatus' Wife

It kind of makes you wonder what happened to the liberals brains? They clearly don’t seem to think for themselves. LOL


22 posted on 01/11/2014 2:41:32 PM PST by freekitty (Give me back my conservative vote; then find me a real conservative to vote for)
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To: upchuck; super7man; Battle Axe; Rodamala; Fiddlstix; petercooper; firebrand; sr4402; ...

Ted Cruz Ping!

If you want on/off this ping list, please let me know.

Please beware, this is a high-volume ping list!


23 posted on 01/11/2014 6:15:25 PM PST by SoConPubbie (Mitt and Obama: They're the same poison, just a different potency)
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To: Cincinatus' Wife

My Goodness, that is interesting!

The “Lyin’ King” claims he was the EDITOR of the Harvard Law Review for a length of time, and yet there is no record of any articles by him.

Meanwhile, Ted Cruz, who makes no such claim, has an erudite and interesting article in the very same magazine.


24 posted on 01/11/2014 6:26:34 PM PST by left that other site
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To: Cincinatus' Wife

The Left has no one as brilliant as Sen. Ted Cruz. He must lead a righteous life, because one iota of a failing will bring the hounds of the ungodly down on him, led by the Leftist hit squads in the media who are dying to discredit him

We pray for him and his family in our family prayers every day and urge all Christians to do likewise.


25 posted on 01/12/2014 3:41:24 AM PST by txrefugee
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To: AdmSmith; AnonymousConservative; Berosus; bigheadfred; Bockscar; cardinal4; ColdOne; ...

Thanks Cincinatus’ Wife.


26 posted on 01/17/2014 6:36:11 PM PST by SunkenCiv (;http://www.freerepublic.com/~mestamachine/)
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