Federalism Constraints on the Treaty Power – N.Y.U. Journal of Legislation & Public Policy

By Todd Warshawsky

April 15, 2024

A century has now elapsed since the Supreme Court, in Missouri v. Holland, recognized the enforceability of treaty obligations to regulate the hunting of migratory birds.¹ Academics have since promulgated a disproportionately large body of scholarship on the case, which, judging purely by caselaw, has slipped under the radar.² The one recent exception to this phenomenon is the 2014 decision in Bond v. United States, in which three concurring justices questioned the constitutionality of adhering to an international convention on chemical weapons and sought to overturn Holland’s apparent approval of treaties obligating the federal government to regulate conduct typically thought of as within the exclusive jurisdiction of states.³ Both of these cases raised the central question of whether regulatory power retained by states generates a constitutional restriction on the Treaty Power.

Whereas most scholars offer either historical or doctrinal solutions to this question, this analysis proposes a federalism approach to what is ultimately a federalism dilemma.⁴ After laying requisite groundwork on the role of treaties within America’s constitutional framework, it proceeds to elucidate the Constitution’s implicit limitations on the Treaty Power. To properly evaluate how states’ rights fit in among these limitations, this analysis intimates a synergy between Article I, Section 8’s Commerce Clause and the power to pursue foreign policy objectives by entering into treaties. In doing so, this analysis suggests that constitutional appraisal of a law made pursuant to the Treaty Power or to the Commerce Clause requires one to ask not about the law’s subject matter but instead, about the “interstate-ness” or “international-ness” of the issue it seeks to resolve.

In order to assess the Constitution’s restraints on the Treaty Power, one must first understand how the Constitution contemplates and authorizes treaties and incorporates them, as sources of international law, into positive domestic law.⁵ As far as the Constitution is concerned, treaties that are made pursuant to constitutional requirements are the supreme law of the land.⁶ The treaty ratification process⁷ further clarifies the procedure that is necessary for the Constitution to consider America as having bound itself to a treaty.⁸ Subject to the restraints that necessarily follow (albeit implicitly) from the Constitution’s structure, the Supremacy Clause extends these valid commitments of international law to the realm of domestic law.⁹ Of course, what matters for those concerned with American positive law is not America’s obligations to its treaty partners but the Constitution’s limits on political actors’ ability to make international law “Supreme Law.”

Article II vests the Treaty Power in the President (subject to senatorial advice and consent), and consistent with the principle that constitutional grants of power are exhaustive and exclusive except when otherwise specified,¹⁰ the Treaty Power is presumptively absolute and subject only to positively articulated restrictions.¹¹ Simply put, if one alleges that the Constitution does not authorize a treaty, they must provide constitutional evidence of a constraint on the Treaty Power.

Such evidence exists — and the general consensus of judges and scholars is that the Treaty Power is not absolute. None argues that a treaty, duly ratified, can amend the Constitution or subvert its structural provisions, thereby evading Article V’s amendment procedure.¹² In addition, it is generally agreed that treaties may not, for example, select state governors or the Speaker of the House, for this would allow the Treaty Power to become a vehicle for advancing political actions incompatible with central constitutional provisions and principles.¹³ From here, several scholars contend that treaties cannot constitutionally institute taxes.¹⁴ By extension, there is also merit to the belief that a treaty cannot spend money on behalf of the United States. After all, Article I, Section 8 bestows Congress with a sweeping taxing-spending power.¹⁵ Moreover, it is unlikely that treaties may, in a manner consistent with the Constitution, make criminal law.¹⁶ This restriction, as do the others just mentioned, flows from the lesser democratic legitimacy inherent in the treaty making process. In short, it does not make sense that the President and a supermajority of senators can get around the People’s House by finding any random country to agree to a treaty when Congressional approval would otherwise be necessary.

A careful observer will be quick to point out that in both Holland and Bond, the concern for democratic legitimacy, and hence the aforementioned structural constraints, should have no bearing on the outcome of the cases — both treaties were followed by implementing legislation, which, as validly enacted federal laws, received the approval of the House of Representatives. With the Congressional go-ahead, it cannot be maintained that a treaty is unconstitutional solely on the grounds that it denies oversight to the People’s House or that it strips a constitutional actor of a specifically allocated power.¹⁷

Strictly speaking, it was the implementing laws that were challenged in both Holland and Bond, and both challenges were presented on Federalism grounds with specific reference to the 10^th Amendment. All of this is to say that the relevant question in Holland and Bond is not, “Can the President and Senate undermine the will of Congress by signing a treaty?” Rather, it is, “Can the federal government undermine the will of state governments by signing a treaty?” Intuitively, it makes sense to question why the federal government can regulate conduct with a treaty in instances where the federal government did not have the power to so regulate without the help of a consenting king. More formally, the concern is that if states’ rights are not taken seriously as an additional structural constraint on the Treaty Power, then the Constitution’s federalism provisions (i.e. the 10^th Amendment’s reserving exclusively to state governments all powers not expressly delegated to the federal government) would fall by the wayside.¹⁸ Justice Holmes, therefore, aptly identifies the issue in Holland when he writes, “The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.”¹⁹

There are certainly structural and prudential arguments in favor of treating federalism as an implicit limitation on the Treaty Power. It is preposterous to think that by getting the Sultan of Oman to sign on, the federal government can swing the allocation of regulatory power from state governments to the federal government. Recognizing this point, however, should neither spell doom for our migrating birds nor give chemical weapons users cause to rejoice. The contours of federalism are by no means settled, leaving the fate of the Treaty Power dependent on the outcome of disputes over the extent and nature of delegated powers, at the center of which is Article I, Section 8’s Commerce Clause.²⁰

Perhaps to the benefit of future courts, the particular behaviors that the treaties and statutes in Holland and Bond sought to regulate lend themselves very nicely to an exploration of the Constitution’s allocation of regulatory power between the federal and state governments. Assuming that an implementing statute will be invalid if and only if it regulates conduct that Congress has no authority to regulate otherwise, then the only question for the Court would seem to be, “Does Congress, on its own, have the constitutional authority to regulate [the hunting of migratory birds or the use of toxic chemicals]?”

Beginning with Holland, the easiest way to settle the debate is by turning to the Court’s application of the Commerce Clause. It reads, “The Congress shall have the Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”²¹ Recognizing that the Constitution generally seeks to enable the federal government to act where the states could not on their own,²² the most plausible reading of the Commerce Clause is that which enables Congress to regulate a behavior whenever it has an impact that extends beyond one state. This reading, applied to the Migratory Bird Treaty Act, undoubtedly supports Congressional power. The overhunting of a bird that has tremendous economic value and that crosses state and national boundaries is the perfect example of a behavior with spillover effects. There is a clear collective action problem among the states generating a “race to the bottom,” in which each state is incentivized to not regulate.

While an exhaustive discussion of the Commerce Clause is beyond the scope of the task at hand, it is worth mentioning, albeit briefly, some further evidence that compels deference to Congress in this situation. As Professor Balkin observes, “[T]he commerce clause uses the words ‘regulate’ and ‘commerce’ only once; it then applies them to three different situations… So, if there is a difference in Congress’s constitutional powers with respect to foreign, Indian, and domestic commerce, it does not stem from the original meaning of the words ‘regulate or commerce.’”²³ The inevitable consequence of this property is that the Clause cannot be consistently read to restrict Congress to regulating only economic behavior “among” states and to simultaneously allow Congress to regulate non-economic intercourse “with” foreign nations. No serious scholar contends that the power to regulate non-economic international transactions, like mail-delivery, is a power reserved by the states. For the history-inclined interpreter, there is ample evidence to suggest that the framers intended to grant Congress regulatory power over things like migrating birds,²⁴ and preliminary drafts of the Constitution bear this out.²⁵ In short, Congress almost certainly has the power to regulate the hunting of valuable migratory birds in the absence of a treaty, leaving Holland on solid constitutional footing.

The primary alternative reading of the Commerce Clause, which the Court has generally preferred in recent decades, proposes that “Commerce” refers exclusively to “commercial” (economic) activity. Some also stress that to be subject to Congressional regulation, an activity must, itself, cross state or national boundaries (think the sale of goods from one state or country to another).²⁶ In the first half of the 20^th Century, the Court gradually expanded the classification of interstate commerce to include participation in an interstate market,²⁷ to behavior which had a substantial effect on interstate markets,²⁸ and eventually to behavior that, when aggregated together with similar behaviors, impacted interstate markets.²⁹ Although the Congress is now generally recognized as having Commerce Clause authorization when federal intervention is necessary, the Court’s emphasis on the economic nature of a behavior has given it the pretense to waver on allowing regulation of activities that are less inherently economic. Justices Thomas and Scalia frequently refute modern Commerce Clause jurisprudence.³⁰ Ironically, the tension between the jurisprudence and the Constitution’s structure would vanish if one were simply to recognize, as they have failed to do, that the original public meaning of “Commerce” actually did refer to exchange and intercourse generally as opposed to the mere trade of commodities.³¹

In this respect, Justice Holmes’ opinion in Holland actually seems ahead of its time and foreshadows Darby and Wickard. Although the Commerce Clause jurisprudence at the time prompted lower courts to strike down attempts to regulate the killing of the same birds without a treaty, the Holland Court recognized that “Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power.”³² Part of the problem is that the federal courts often deal with one constitutional clause at a time, generating a body of caselaw for interstate commerce that is unaware of, say the taxing power, or even the international commerce power. Citing a Full-Faith-and-Credit case, Holmes wrote that, “What was said in that case with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act.”³³ Yet, the same Court that properly applied Federalism principles in Holland never properly incorporated them into Commerce Clause jurisprudence.³⁴

The Chemical Weapons Convention Implementation Act is a much tougher sell under the Commerce Clause, as chemical weapons do not migrate. It is conceivable that there might be some collective action challenge associated with regulating toxic chemicals at the state level, but more likely, Congress would have no enumerated power to ban possession of toxic chemicals in the absence of the Convention. Toxic Chemical possession is, in this way, like child abuse: although it occurs in all 50 states, there is nothing about the issue that creates spillovers or requires interstate coordination. Should this mean that the Implementation Act is unenforceable against Americans?

Probably not. Instead, it should point out the oversimplification inherent in the preceding test (namely, in asking only whether Congress has the power to promulgate this regulation without a treaty). True, if Congress does have a power on its own, a non-self-executing treaty to the same effect is necessarily valid, but crucially, the inverse need not be true. The Treaty Power is, itself, an affirmative grant of power, as is the power to regulate commerce with foreign nations, as is the power to define and punish Offenses against the Law of Nations, all of which point in favor of allowing Congress to take the position that objectives in international relations require making a certain action illegal.³⁵ If a pre-existing power is necessary to create or implement a treaty, then the power to make and implement treaties would be hollow. To say that a treaty is valid only if Congress has an additional power would gut the federal government’s ability to conduct foreign policy. Looking only at the United States, toxic chemicals may not be a federal problem, but it is entirely plausible that the President and Congress might think, “We do not want our adversaries stockpiling toxic chemicals, and the only way to guarantee that is to sign a treaty in which we agree not to as well.” This line of reasoning, therefore, suggests that the Bond Court would have been wrong to strike down the Chemical Weapons Convention Implementation Act as a violation of states’ rights.

To be sure, the fact there is no subject-matter limitation on the Treaty Power³⁶ does not imply that the federal government can usurp general police powers from states with the help of Mozambique. Thus, Justice Scalia’s concerns in Bond are at least partially justified:

The holding that a statute prohibiting the carrying of firearms near schools went beyond Congress’s enumerated powers… could be reversed by negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools. Similarly, Congress could reenact the invalidated part of the Violence Against Women Act of 1994 that provided a civil remedy for victims of gender-motivated violence, just so long as there were a treaty on point.
³⁷

Assuming, arguendo,that those decisions were correct, Congress would not be entitled to overturn them by finding a willing country. In part because of simplistic summaries from academics,³⁸ Scalia overextends this constraint through a misreading of Holland, “Imagine the United States’ entry into an Antipolygamy Convention, which called for — and Congress enacted — legislation providing that, when a spouse of a man with more than one wife dies intestate, the surviving husband may inherit no part of the estate. Constitutional?… Holland would uphold it.” By no means is it a necessary conclusion that Holland would condone such a treaty, and although Justice Holmes’ opinion is a little skimpy, his game-theoretical approach actually suggests that it would not.³⁹

As a last resort, one can justify implementing statutes that criminalize conduct with the Necessary and Proper Clause. In this case, the “Power” that Congress “carr[ies] into Execution” is that of making treaties.⁴⁰ It follows naturally from the Constitution’s creation of the Treaty Power that Congress is able to “make laws to carry the stipulations of treaties into effect.”⁴¹ Justice Scalia counters that “a power to help the President make treaties is not a power to implement treaties already made.”⁴² Again, the latter power is likely sufficiently implicit that the Necessary and Proper Clause is probably unnecessary here,⁴³ but even if not, Scalia’s reading of the Necessary and Proper Clause would essentially restrict Congress’s power to things like purchasing pens and translators for the President. So narrow a reading would make even McCulloch v. Maryland wrongly decided.⁴⁴

In summary, there is a tension in the evidence: constitutional structure suggests allowing the President, Senate, and Congress to police behavior when they purport to exercise their treaty making and implementing powers, yet deference is, as Scalia points out, prone to abuse. What, then, are courts to do when reviewing federalism challenges to treaties? Simply put, they should ask whether the President/Senate and Congress seek, in actuality, to solve a real problem that only the federal government can resolve. This is where the Commerce Clause and Treaty Power jurisprudence converge. Constitutional structure does not suggest a bright-line test, and evaluating the evidence (and, for that matter, deciding what evidence to evaluate) may not be so straightforward. Consequently – and because the two streams of caselaw overlay the same federalism principles and warrant parallel methodology – the Court would be well served by considering Commerce Clause questions and Treaty Power questions in light of one another. An optimist may even see this as an opportunity for the Court to refine both. Dwelling on Holland and Wickard together would compel Justices Thomas, Scalia, and Alito, as well as their ideological successors, to drop both the assumption that the Commerce Clause implicates only the trade of commodities and their undue hostility to treaties enacted to further national interests in the international arena. As globalization and multilateralism accelerate, the Court will likely have several opportunities to make an important choice: to continue down the path of overwrought doctrinal rules or to step back, reorient itself with a wholistic view of the Constitution’s structure, and return to coherent and principled caselaw on the scope of federal power. Hopefully, it will choose the latter.

Todd Warshawsky, J.D. Class of 2026, N.Y.U. School of Law.

Suggested Citation: Todd Warshawsky, Federalism Constraints on the Treaty Power, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).

1
252 U.S. 416 (1920).
2
Since the turn of the century, the Supreme Court has cited Holland in five majority opinions and in one dissent, but the case was cited in no fewer than 1,000 law review articles during that period. See generally id.
3
Bond v. United States, 572 U.S. 844 (2014) (Scalia, Thomas, and Alito, JJ. concuring). A majority of Justices overturned Bond’s conviction on the narrower grounds that her conduct was not covered by the Convention, whereas the 3 concurring justices took the further step of challenging the constitutionality of adhering to the Convention.
4
For an overview of the major criticisms and defenses of Holland, see generally Michael D. Ramsey, Missouri v. Holland and Historical Textualism, 73 Mo. L. Rev. 969, 969 n.4 (2008); and Thomas Healy, Is Missouri v. Holland Still Good Law-Federalism and the Treaty Power, 98 Colum. L. Rev. 1726 (1998).
5
The written Constitution, for its part, assumes the existence of treaties as modes of generating law between nations, and, to its credit, lays out their role in relation to the powers, restraints, and processes for law-making at the federal level. Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 446-51 (2000). For present purposes, it is sufficient to think of a treaty as an agreement or contract between sovereigns committing themselves to its terms. The Vienna Convention on the Law of Treaties defines a treaty as “an international agreement concluded between States in written form and governed by international law…” The Vienna Convention on the Law of Treaties, art. 2(1)(a), opened for signature May 23, 1969, 1155 U.N.T.S. 331, 333. On the meaning of treaties, see generally Malgosia Fitzmaurice, The Identification and Character of Treaties and Treaty Obligations between States in International Law, 73 British Year Book of Int’l L. 141, 147-48 (2002).
6
U.S. Const. art. VI (“… all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”).
7
U.S. Const. art. II, § 2 (“[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…”).
8
That is, how a treaty becomes both American law, binding on persons and things within its jurisdiction, as well as international law, which binds America itself vis-à-vis other members of the community of nations.
9
Edye v. Robertson, 112 U.S. 580, 597-99 (1884).
10
See, e.g., Champion v. Ames (Lottery Case), 188 U.S. 321, 356 (1903) (“…the power of Congress to regulate commerce among the states is plenary, is complete in itself, and is subject to no limitations except such as may be found in the Constitution.”) (emphasis added).
11
To emphasize the federal government’s ubiquity in this realm, consider also that Article II charges the president with “reciev[ing] Ambassadors and other public ministers,” U.S. Const. art II, § 3, and that Article I affirmatively prohibits states from entering into treaties with foreign governments. Id. at art. I, § 10.
12
The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 620–21 (1871) (“It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument.”).
13
Reid v. Covert, 354 U.S. 1 (1957) (holding that treaties seeking to delegate jurisdiction to extranational entities may not curtail individual due-process procedural rights).
14
See, e.g., C.H. McLaughlin, The Scope of the Treaty Power in the United States, 42 Minn. L. Rev. 709, 756 (1958). This claim is supported by the Constitution’s requirement that revenue-raising bills originate in the House of Representatives. U.S. Const. art. I, § 7.
15
McLaughlin, supra note 14. In addition, McLaughlin similarly cites such powers as that of declaring war and impeachment, that of commissioning officers and commanding the military, and that of hearing cases in law and equity, suggesting the general principle that a treaty alone may not delegate away a power explicitly given to a specific constitutional actor or body.
16
Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L.J. 2202, 2230–31 (2015) (arguing that the Constitution was designed to promote America’s compliance with the Law of Nations but that it allocated responsibility for defining and punishing offenses to Congress as a legislative power).
17
Stephen Breyer, The Court and the World: American Law and the New Global Realities 214 (2015)(citing Foster v. Neilson, 27 U.S. (2 Pet.) 253, 254 (1829)). Chief Justice Marshall clarifies the difference between self-executing and non-self-executing treaties in Foster v. Neilson, writing, “Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.” 27 U.S. 253, 254 (1829) .
18
See, e.g., Michael J. Glennon & Robert D. Sloane, The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power, 41 Yale J. Int’l L. 51, 81–101 (2016).
19
252 U.S. 416, 433-34 (1920).
20
The Commerce Clause has generated, by far, the most caselaw and commentary, but the rest of Section 8 as well as the enforcement clauses of Amendments 13, 14, 15, 19, and 26 are important additional grants of power that define the relationship between Federal and state regulation. See, Akhil Reed Amar, America’s Constitution: A Biography 361–63 (2012).
21
U.S. Const. art. I, § 8.
22
Amar, supra note 20, at 108.
23
Jack M. Balkin, Living Originalism 141 (2011).
24
At the Pennsylvania ratifying convention, James Wilson explained, “Whatever object of government is confined, in its operation and effects, within the bounds of a particular state, should be considered as belonging to the government of the state; whatever object of government extends, in its operation or effects, beyond the bounds of a particular state, should be considered as belonging to the government of the United States.” Jonathan Elliot, The Debates In the Several State Constitutions on the Adoption of the Federal Constitution II, 399 (1836) (emphasis added).
25
Before the Committee of Detail composed the language which made it into the final draft, the convention rejected language which might be construed to restrict the Congress’s ability to “interfere… in any matters of internal police,” in favor of Gunning Bedford’s proposition “That the national Legislature ought to possess [the power] to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.” Balkin, supra note 20, at 144.
26
Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty-Updated Edition, 315-16 (2014).
27
Champion v. Ames (Lottery Case), 188 U.S. 321 (1903).
28
United States v. Darby, 312 U.S. 100 (1941).
29
Wickard v. Filburn, 317 U.S. 111 (1942).
30
United States v. Lopez, 514 U.S. 549 (1995); and Nat’l Fed’n. of Indep. Buss. v. Sebelius, 567 U.S. 519 (2012).
31
Balkin, supra note 23, at 385 nn.71, 72 (observing that Chief Justice Marshall and Justice Black rely on the broader original meaning of “commerce,” as do such scholars as Professors Calabresi and Amar); Ramsey, supra note 4, at 977.
32
252 U.S. 416, 435 (1920).
33
Id. (emphasis added).
34
For this reason, Professor Amar asserts that “legal clarity might be advanced if lawyers and judges began referring to these words not as the ‘commerce clause,’ but rather as ‘the international-and-interstate clause’ or the ‘with-and-among clause.’” Amar, supra note 20, at 108.
35
U.S. Const. art. I, § 8. See also, Cleveland & Dodge, supra note 16.
36
Ramsey, supra note 4.
37
572 U.S. 844, 878 (2014) (Scalia, J., concurring) (citations omitted).
38
Id. at 877. Scalia relies on a tenuous reading by Professor Tribe: “By negotiating a treaty and obtaining the requisite consent of the Senate, the President … may endow Congress with a source of legislative authority independent of the powers enumerated in Article I.” Id. (citing Laurence Tribe, American Constitutional Law 645-646 (3d ed. 2000)). By failing to recognize Holland’s implicit requirement of a collective action problem, Tribe unnecessarily characterizes Holland as generating a federalism loophole.
39
In a separate opinion, Justice Alito, adds, “Insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the states, the Convention exceeds the scope of the treaty power.” Bond, 572 U.S. at 897 (Alito, J., concurring). For this claim to be valid in light of the absence of the already mentioned structural constraints on treaties, it would need to be the case that America is simply not capable of binding itself under international law in the eyes of the Constitution. Taken to its logical conclusion, Justice Alito’s argument would render extradition treaties unconstitutional as well. Nothing in the Constitution’s text or structure entails that the federal government cannot make binding international commitments to take actions that it can otherwise take.
40
The Court made what appears to be a direct reference to the Necessary and Proper Clause in Neely v. Henkel, 180 U.S. 109, 121 (1901), stating that “the power of Congress to make all laws necessary and proper for carrying into execution… all [powers] vested in the government of the United States… includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.”
41
Breyer, supra note 17, at 221, citing Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842). One should note that Prigg should be regarded with skepticism but because it failed to consider individual due-process rights, not because it overstated Congressional supremacy where the Constitution authorizes Congress to legislate.
42
Bond v. United States, 572 U.S. 844, 876 (2014) (Scalia, J. concurring).
43
Restatement (Third) of the Foreign Relation Law of the United States, § 111 cmt. J (“A treaty valid under the Constitution …affords a Constitutional basis for an act of Congress to implement the treaty, even if Congress would not have the power to enact such law in the absence of the treaty”).
44
M’Culloch v.Maryland, 17 U.S. (4 Wheat.) 316, 365-67 (1819) (upholding Congress’s power to establish a National Bank pursuant to its enumerated powers in Art. I, § 8, and rejecting the view that the Necessary and Proper Clause restricts Congress to those means without which its powers could not be exercised).