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.
and treaties do not override the Constitution
if they try, they need to face a coup or revolution
Cruz played on their playground, kicked their snooty tails and they're not happy. Go Cruz!
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.
:)
Cruz ping.
Delicious, isn’t it? We don’t get very many treats nowadays but this certainly is one!
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.
bump
Thanks.
Much of theConstitutional confusioncomes 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.
For a bit of fun go read some of the comments at the Daily Beast. [Link in first comment above].
The Harvard law Review. I’ve heard of this. Is there any other politicians that we can read what they have written in there?
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.
Cruz is a genius and a scholar. A great man. But will he have to corrupt himself to get elected at the national stage?
It looks like he has a good shot at raising the IQ of the nation.
".............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.............
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.
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.
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