Missouri v. Holland (1920)

Feb 5

A Case for the Birds?

At first glance, Missouri v. Holland (1920) may not seem of great significance. Its immediate legal question had to do with migratory birds, and which level of government was constitutionally authorized to regulate hunting them. The case creates broad executive power that has been largely ignored by subsequent presidents and is, thus, latent. And yet, Missouri v. Holland is an intriguing case for at least three related reasons. It is a classic statement of living constitutionalism, a ruling that goes outside of the Constitution’s text and the Framers’ intent to decipher the legal boundaries of presidential and congressional power. It is also an expansive reading of the president’s power to negotiate treaties and executive agreements and their place in the hierarchy of American law. Justice Oliver Wendell Holmes’s majority opinion suggests that treaties can alter the Constitution. They can create legal obligations that contradict or add to existing provisions in the Constitution by expanding or contracting the powers of the president, the Congress, or the states. Finally, Missouri v. Holland depreciates the power of states and the principle of federalism on which it rests.

The Legal Issues in Missouri v. Holland

The Migratory Bird Treaty Act (MBTA) of 1918 was a federal law that regulated the taking of migratory birds by hunting, trapping, or other methods. The purpose of the law was to protect birds that were considered vital to the ecosystem. Of particular concern was their role in agriculture, especially the pollination of crops. The Migratory Bird Treaty of 1916, which engendered the MBTA, was made between the U.S. and England on behalf of Canada. It was signed by President Woodrow Wilson on August 16, 1916. Prior to the treaty’s ratification, Congress passed, and President Taft signed the Weeks-McLean Act (1913) that authorized Congress to regulate migratory birds. The law was struck down as unconstitutional by two state supreme courts (Maine and Kansas) and three federal district courts on the grounds that Congress did not possess the power under the Commerce Clause to regulate migratory birds. One of the federal district court cases, United States v. Shauver (1914), was appealed by the federal government to the U.S. Supreme Court, but the legal controversy became moot before it could be decided because the Weeks-McLean Act was replaced by the MBTA.

Of concern in Missouri v. Holland was the possibility that the treaty signed by President Wilson in 1916 expanded Congress’s constitutional power. In other words, the MBTA did essentially what the Weeks-McLean Act had done in 1913 that was found unconstitutional in United States v. Shauver. How could the 1913 law be unconstitutional and the 1918 law constitutional when they both assumed the same Commerce Clause power to regulate migratory birds? What changed in-between the two federal laws was the Migratory Bird Treaty of 1916 that obligated the U.S. to protect migratory birds and presumably authorized Congress to pass laws regulating them. The Supreme Court had to decide if the power to regulate migratory birds was, in effect, added to Congress’s powers (assuming that United States v. Shauver was correctly decided) as a consequence of the treaty. Opponents of the MBTA argued that treaties and executive agreements cannot change the powers defined by the Constitution. If a law regulating migratory birds was unconstitutional before the treaty, it was likewise unconstitutional after the treaty was ratified. Moreover, if the president can negotiate a treaty that is ratified by the Senate that expands executive and legislative power, then both the president and the Senate are above the Constitution because they can use the treaty power to sidestep constitutional limits on their respective powers.

The Court’s Ruling in Missouri v. Holland

The Court ruled 7-2 in favor of the federal government. Justice Holmes wrote for the Court. He argued that the power to regulate migratory birds had to rest with the federal government because the problem that the MBTA was designed to address was a national and international problem. States were not equipped to deal with a problem that transcended their respective borders. Holmes cited the president’s power under Article II, Section 2 to make treaties and the Supremacy Clause in Article VI as evidence that a) the president was constitutionally authorized to make treaties and that b) such treaties and the laws made by Congress to support them were “the supreme law of the land.” He acknowledged the possibility of an unconstitutional treaty but rejected the notion that the one signed by President Wilson was invalid. Rather, he argued that the limits on federal power were flexible, not fixed. The Constitution’s words “called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.” In other words, the Constitution’s Framers could not have foreseen the circumstances addressed by the MBTA.

The Framers “created an organism” that should not be construed so strictly that it prohibits government from effectively addressing the challenges of its age. In Holmes’s view, the treaty “does not contravene any prohibitory words to be found in the Constitution.” He suggested that the Constitution does not deny the president the power to make a treaty that protects migratory birds, nor does it deny Congress the power to regulate migratory birds in conjunction with a treaty. Furthermore, there is no “invisible radiation” emanating from the Tenth Amendment that would suggest otherwise. What power that states have to regulate birds is not exclusive. It is concurrent. Consequently, because the states are ill-suited to regulate migratory birds, the constitutional authority to regulate them falls to the national government, especially given that the national interest in this case is “of very nearly the first magnitude.” Holmes suggested that failing to protect migratory birds would destroy crops and forests. He stated that “We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed.” The Court upheld both the treaty and the MBTA.

Justice Holmes dismissed the idea that United States v. Shauver or United States v. McCullagh (one of the other federal district court cases that ruled the Weeks-McLean Act unconstitutional) had any bearing on Missouri v. Holland because they did not take into account the effect of the treaty. The treaty changed the constitutional ground on which the MBTA should be considered. He argued that “It is obvious 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.” He cited as an example “cases where the States individually are incompetent to act.” Regulating migratory birds is such a case.

Holland’s Legacy

Holmes’s suggestion that treaties, and by implication executive agreements, can change the Constitution created such a backlash that years later Congress proposed a constitutional amendment, the Bricker Amendment, to nullify its core ruling. It fell one vote short in the Senate of the required two-thirds majority. As a consequence, the House of Representatives did not vote on the amendment. President Eisenhower’s opposition to the amendment was likely enough to prevent its passage in the Senate.

The reaction to the Court’s ruling was understandable. The notion that treaties can change constitutional powers is inconsistent with the republican (democratic) foundations of American constitutionalism. In the American tradition, the Constitution was created by the people’s representatives. The Constitutional Convention was called into existence by state legislatures and supported by a resolution from the Confederation Congress. The Constitution was first drafted in Philadelphia in 1787 by delegates from the states. It was then sent by the Confederate Congress to the states to be ratified by state ratifying conventions. The process of ratification was democratically robust. In addition to the debates that took place in the ratifying conventions, public debates gave the people the opportunity to express their views of the proposed constitution. The numerous exchanges between the Federalists and AntiFederalists as well as the delegates’ notes on the convention’s deliberations, are to this day used by the courts to understand the meaning of the Constitution. In short, the process for creating and ratifying the Constitution modeled constitutionalism because it was highly representative and included both the national and state governments.

By contrast, there is little, if anything, that is constitutionally democratic about the treaty making process. The president negotiates the treaty and the Senate ratifies it. It is one thing to argue that the treaty-making process is sufficiently democratic to create statutory law. It is another thing to argue that it is sufficiently democratic to create fundamental or constitutional law. The ruling in Missouri v. Holland is radically outside the American constitutional tradition because it circumvents the constitutionally designated processes for amending the Constitution. It gives the president and Congress an extra-constitutional means for expanding their respective powers. If ever there was an instance when the Supreme Court should have checked an unconstitutional grab for power, Missouri v. Holland was it (assuming that United States v. Shauver and United States v. McCullagh were correctly decided).

Why, then, was Justice Holmes and the majority seemingly blind to the radical nature of their ruling? The answer to the question has much to do with how they imagined the adaptability of the Constitution and the document’s relationship to the Framers’ original intent. The Framers created two processes for amending the Constitution, constitutional conventions and initiation by Congress followed by ratification by the states. It was not the federal courts’ prerogative to amend the Constitution, in part because the federal judiciary is not a representative branch of government and it is divorced from the states. Unlike the Congress and the presidency, the states have no say in the selection of federal judges. The two constitutionally proscribed processes for amending the Constitution include these two features. They are federally democratic. They are broad in constitutional scope because they encompass the two central parts of the nation, the national government and the states. The federal courts are narrow in scope because they are only part of the national government; they are not representative and do not express the will of the states. They are not designed to express a democratic consensus that is the foundation for constitution-making and constitutional amendment. The courts are not the constitutional place to make or amend constitutions because they are not designed to express a political consensus that warrants constitutional change. They are designed to preserve the political/democratic consensus that has been established by the national government and the states into fundamental law not to create or initiate constitutional change. The Court’s ruling in Missouri v. Holland turns American constitutionalism on its head by subordinating constitutional law to statutory law.

It speaks well of American political culture that presidents have ignored the Supreme Court’s decision in Missouri v. Holland. It matters that Justice Black’s opinion in Reid v. Covert (1957) diverges from Justice Holmes’s opinion. In that case, Black argued that presidents could not use executive agreements to deny rights (in Reid v. Covert, trial by jury) protected by the Bill of Rights; executive agreements cannot circumvent the Constitution; statutory or executive-made laws are inferior to constitutional law. Justice Black’s opinion in Reid v. Covert indicated that there was opposition to Holmes’s expansive view of the Constitution after the failed efforts to pass the Bricker Amendment. Black wrote that the “United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.…no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” As if to refute Justice Holmes’s opinion in Missouri v. Holland, Justice Black added that there is nothing in the Supremacy Clause that “intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.” Black reiterated Justice Field’s opinion in Geofroy v. Riggs (1890) that the treaty power does not extend “so far as to authorize what the Constitution forbids.” The fact that Black’s opinion was a plurality ruling indicates that Reid v. Covert was by no means a resounding rejection of Justice Holmes’s opinion in Missouri v. Holland. As a consequence, the debate over executive agreements, treaties, and the pliability of the Constitution continued.