Congress’s first effort at protecting migratory birds from lax state hunting regulations had been struck down as exceeding federal constitutional authority. After the President negotiated the Migratory Bird Treaty with Canada, Congress tried again, imposing essentially the same restrictions based on the Treaty. This time the litigation reached the Supreme Court and the US won. The Court held 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 . . .
Since then, it has generally been thought that the Treaty Power provides at least some independent basis for federal legislation that would not not pass a Commerce Clause test. For decades that extra power wasn’t important, because the Commerce Clause was interpreted so expansively. But as the Court has cut back at least marginally on the reach of the Commerce Clause over the last two decades, the Treaty Power looms a bit larger. And it has attracted the attention of states’ rights advocates who seek to cabin its reach.Doremus goes on to explain the potential significance of the case for the Endangered Species Act. Her post is a reminder that environmental law has been around for a long time, including at the highest levels of the legal system.