Missouri v. Holland\u27s Second Holding

This legitimate federalism problem, however, does not warrant a complete rethinking of Treaty Power doctrine. It just requires some tinkering around Missouri v. Holland\u27s edges. The solution I propose is far narrower than those proposed by Bradley and Rosenkranz, and unlike their proposed solutions, it is consistent with the Founder\u27s design. I argue that the power to implement treaties under the Necessary and Proper clause is the power to require compliance with treaty obligations. Because aspirational treaty provisions do not impose obligations in any meaningful sense of the term, the clause does not give Congress the power to implement such provisions. If such provisions concern matters otherwise beyond Congress\u27 legislative powers, the Constitution leaves their implementation to the States. This approach is consistent with the Founders\u27 design because the Constitution reflects the Founders\u27 fear of treaty violations by States, and only obligatory provisions can be violated. Part II of this article considers and rejects Professor Bradley\u27s approach. Part III considers and rejects Professor Rosenkranz\u27s approach. Part IV sets forth the true federalism problem posed by the holding of Missouri v. Holland and advances my more tailored solution to this problem