Treaties and the Eleventh Amendment

The Supreme Court\u27s recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress\u27s legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce Power. The Court\u27s recent decisions striking down federal statutes as exceeding the Commerce Power for the first time since the New Deal have revived the question of Congress\u27s power to implement treaties by enacting statutes that cannot be made in the absence of a treaty. Scholars have argued that Missouri v. Holland should be rethought in the light of such decisions as United States v. Lopez, while others have defended Missouri v. Holland. One important branch of the Court\u27s recent federalism jurisprudence is that relating to state sovereign immunity. In Seminole Tribe of Florida v. Florida, the Court held that Congress may not abrogate the states\u27 Eleventh Amendment immunity pursuant to its Commerce Power, reversing Pennsylvania v. Union Gas Co. Although the Supreme Court has reaffirmed the holding of Fitzpatrick v. Bitzer that Congress may abrogate Eleventh Amendment immunity pursuant to the Fourteenth Amendment, its decisions make it clear that the window left open by Fitzpatrick is narrow. These decisions have led some scholars to consider whether the Treaty Power provides an alternative basis for abrogating the states\u27 sovereign immunity. This paper focuses on the latter question. It considers whether state sovereign immunity constrains Congress\u27s power to authorize remedies against states pursuant to the Treaty Power. The author is among those who have defended the holding of Missouri v. Holland that Congress may pass laws necessary to implement treaties even if the laws would exceed Congress\u27s legislative power in the absence of a treaty, however, he concludes here that Congress\u27s power to implement treaties is not exempt from the federalism limitations reflected in the doctrine of state sovereign immunity