Missouri v. Holland

Missouri v. Holland, 252 U.S. 416 (1920), argued 2 Mar. 1920, decided 19 Apr. 1920 by vote of 7 to 2; Holmes for the Court, Van Devanter and Pitney in dissent. The state of Missouri sought to enjoin a United States game warden from enforcing federal regulations enacted pursuant to the Migratory Bird Treaty Act of 1918 on the grounds that the statute unconstitutionally interfered with rights reserved to the States under the Tenth Amendment. (See State Sovereignty and States' Rights.) The Bird Treaty Act had been passed to fulfill United States obligations under a treaty with Great Britain to protect migratory birds. (See Treaties and Treaty Power.) Missouri appealed from lower court decisions upholding the statute's constitutionality. An earlier federal statute to regulate the taking of migratory birds, not passed pursuant to an international treaty, had been held unconstitutional in lower courts on the grounds that the birds were owned by the states in their sovereign capacity and were therefore immune from federal regulation under the Tenth Amendment.

Justice Oliver Wendell Holmes concluded that the statute was a “necessary and proper” means of executing the powers of the federal government, valid under Article I, section 8, because the United States had the authority to implement treaty obligations.

The Court held that since the treaty was valid it superseded state authority as the supreme law of the land under Article VI of the Constitution. This was so, Holmes wrote, because migratory birds did not respect national boundaries and were therefore appropriate subjects for regulation by agreement with other countries. Even if the states of the United States were capable of effectively regulating the subject, the Court found nothing in the Constitution to prohibit the federal government from acting by means of a treaty to deal with a “national interest of very nearly the first magnitude … [that] can be protected only by national action in concert with another power” (p. 435).

Holmes's analysis has been criticized as a bootstrap method to create new federal power by means of international treaty. Fears of an expansive application of this principle were instrumental in encouraging popular support for the “Bricker Amendment” in 1953, which would have amended the constitution to provide that “[a] treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty.” In 1957, the Supreme Court relieved much of this public concern in Reid v. Covert, when it held that status of forces agreements between the United States and foreign countries could not deprive U.S. civilian dependants of the right to a jury trial by making them subject to military courts‐martial while they were stationed abroad. Citing Missouri v. Holland, the Court wrote, “To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier” (p. 18).

The Holland opinion has become largely irrelevant because of the greatly expanded scope of national power today over all matters touching interstate or foreign commerce. But the case has continuing importance. First, the opinion contains what has come to be regarded as the classic statement of the “living document” approach to constitutional interpretation in which historic practice, rather than the intent of the framers, is given primary emphasis (see Original Intent). Second, even though the controversy in this case concerned the scope of the treaty power, rather than treaty supremacy, the theory of the case has provided support for later Court decisions such as United States v. Belmont (1937) and United States v. Pink (1942) establishing the supremacy of federal executive agreements over state law.

Last, Holmes's emphasis on the proposition that matters of international concern necessarily give rise to federal power has provided support for later holdings where the Court found that state law may be preempted, even by federal common law, whenever the state rule may interfere with the conduct of foreign affairs by the national government.

Harold G. Maier