Boerne and Treaty Power

David Cruz dcruz at LAW.USC.EDU
Thu Jun 26 14:15:25 PDT 1997

On Thu, 26 Jun 1997, Steven D. Jamar wrote:

> I'm not sure I follow Kurt Lash's argument, so I will state the simplest
> form of the treaty power argument.
> [snip]
> 4. By obligating the U.S. to certain international norms in treaties, those
> treaties become the supreme law of the land and those treaties, just like
> the commerce clause, or taxing power, or 14th amendment, provide an
> independent source of power for Congress to act.
> [snip]
> 8.  So, if RFRA is still good law at the federal level, and if RFRA were
> treated as implementing the C&P Covenant, then what would be the argument
> that it is not the Supreme Law of the land, binding on the states?  It
> seems we have at least three possibilities -
> [snip]
> So, I don't know if this answers your implicit question - as I said, I
> don't quite understand it.  But the treaty power can give the federal
> government powers it would not otherwise have vis-a-vis the states.  What
> would the court do?  It may well change the law and give us more guidance
> about what the treaty power means - and that may be along the lines  you
> envision.  But it may not.
> [snip]

Not knowing much of anything about treaty power/law, I ask in humble
ignorance:  Might the Court hold that a "RFRA II--The Lost World" statute
is not a permissible implementation of the C&P Covenant?  (Would this
require the Court to change the existing law of treaty power?)

-David Cruz, USC Law (Cal.)

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