Treaties and the Necessary and Proper Clause.

What power, or powers, does Congress exercise when it enacts legislation for the purpose of carrying treaties of the United States into effect? When the subject matter of the treaty falls within the ambit of Congress’s enumerated powers, then it is these powers that it exercises in carrying the treaty into effect. But if the treaty deals with a subject that falls within the national jurisdiction because of its international character, then recourse is had to the Necessary and Proper Clause. Thus, of itself, Congress would have had no power to confer judicial powers upon foreign consuls in the United States, but the treaty-power can do this and has done it repeatedly and Congress has supplemented these treaties by appropriate legislation.367 Congress could not confer judicial power upon American consuls abroad to be exercised over American citizens abroad, but the treaty-power can and has, and Congress has passed legislation perfecting such agreements, and the Supreme Court has upheld such legislation.368

Again, Congress of itself could not provide for the extradition of fugitives from justice, but the treaty-power can and has done so scores of times, and Congress has passed legislation carrying our extradition treaties into effect.369 And Congress could not ordinarily penalize private acts of violence within a state, but it can punish such acts if they deprive aliens of their rights under a treaty.370 Referring to such legislation, the Court has said: “The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of Article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, 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 foreign power.”371 In a word, the treaty-power cannot purport to amend the Constitution by adding to the list of Congress’s enumerated powers, but having acted, the consequence will often be that it has provided Congress with an opportunity to enact measures that independently of a treaty Congress could not enact; the only question that can be raised as to such measures is whether they are “necessary and proper” for the carrying of the treaty in question into operation.

The foremost example of this interpretation is Missouri v. Holland.372 There, the United States and Great Britain had entered into a treaty for the protection of migratory birds,373 and Congress had enacted legislation pursuant to the treaty to effectuate it.374 Missouri objected that such regulation was reserved to the states by the Tenth Amendment and that the statute infringed on this reservation, pointing to lower court decisions voiding an earlier act not based on a treaty.375 Noting that treaties “are declared the supreme law of the land,” Justice Holmes for the Court said: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.”376 “It is obvious,” he continued, “that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, ‘a power which must belong to and somewhere reside in every civilized government’ is not to be found.”377 Because the treaty and thus the statute dealt with a matter of national and international concern, the treaty was proper and the statute was “necessary and proper” to effectuate the treaty.


Acts of March 2, 1829, 4 Stat. 359 and of February 24, 1855, 10 Stat. 614. [Back to text]
See In re Ross, 140 U.S. 453 (1891), where the treaty provisions involved are given. The supplementary legislation, later reenacted at Rev. Stat. 4083–4091, was repealed by the Joint Res. of August 1, 1956, 70 Stat. 774. The validity of the Ross case was subsequently questioned. See Reid v. Covert, 354 U.S. 1, 12, 64, 75 (1957). [Back to text]
18 U.S.C. §§ 31813195. [Back to text]
Baldwin v. Franks, 120 U.S. 678, 683 (1887). [Back to text]
Neely v. Henkel, 180 U.S. 109, 121 (1901). A different theory is offered by Justice Story in his opinion for the court in Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842): “Treaties made between the United States and foreign powers, often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties.” Id. at 619. Story was here in quest of arguments to prove that Congress had power to enact a fugitive slave law, which he based on its power “to carry into effect rights expressly given and duties expressly enjoined” by the Constitution. Id. at 618–19. However, the treaty-making power is neither a right nor a duty, but one of the powers “vested by this Constitution in the Government of the United States.” Art. I, § 8, cl. 18. [Back to text]
252 U.S. 416 (1920). [Back to text]
39 Stat. 1702 (1916). [Back to text]
40 Stat. 755 (1918). [Back to text]
United States v. Shauver, 214 F. 154 (E.D. Ark. 1914); United States v. McCullagh, 221 F. 288 (D. Kan. 1915). The Court did not purport to decide whether those cases were correctly decided. Missouri v. Holland, 252 U.S. 416, 433 (1920). Today, there seems no doubt that Congress’s power under the commerce clause would be deemed more than adequate, but at that time a majority of the Court had a very restrictive view of the commerce power. Cf. Hammer v. Dagenhart, 247 U.S. 251 (1918). [Back to text]
Missouri v. Holland, 252 U.S. 416, 432 (1920). [Back to text]
252 U.S. at 433. The internal quotation is from Andrews v. Andrews, 188 U.S. 14, 33 (1903). [Back to text]