By Thomas Cribbins
Thomas Cribbins is a junior at the University of Michigan studying political science.
From the very beginning, Americans have been wary of the power of the federal government. The Framers tried to hedge this concern by creating a “government of laws, not men.”.  The Federalist Papers echo reassurance to pre-Constitutional America by promising to protect the government from ambitious, self-interested politicians and factions.  In Federalist 45, Madison again addressed the fears of an almighty central government by announcing: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”  However, the federal government’s power has certainly expanded in the intervening centuries, particularly in the last few decades. Pushing the limits of the enumerated powers has employed many people in and outside the federal government. However, the issue stems when stretching an enumerated power cannot get the job done. What is Congress, the President or any other part of the federal government to do when the puzzle simply will not come together? This brings to the curious case of the Migratory Bird Treaty Act of 1918, the Supreme Court case Missouri v. Holland (1920), and what seems to amount to the new powers the federal government assumed because they were granted by Canada.
Until 1918, states were granted almost all authority over the taking of game animals within their state.In turn, every state had radically different ideas about game management and this dynamic generated a moral hazard with several states competing to take a larger share of game. This included inflating bag limits to prevent more southern states from being able to take a larger share of the waterfowl or other migratory birds that routinely crossed state lines.  Congress decided to stop the madness and protect the common-pool resource that the states all intended to desecrate. The result was the Migratory Bird Treaty Act of 1918, a treaty with Canada that granted the Secretary of the Interior the broad, redundant and superfluous powers to regulate migratory birds. The treaty was eventually signed onto by Mexico, Russia and Japan, but the point still remains: who said Congress or the federal government at large should be in charge of regulating migratory birds?  Who even said they should have any part at all?
The issue is not expediency, and the bigger question is, how can the federal government regulate this issue? This certainly seems like a backdoor approach to interjecting their presence. By creating a treaty around this issue, exclusively an enumerated federal power, the federal government captured another area to exercise their power. If the Constitution is only supposed to grant specific powers to the federal government and leave the rest to the states and the citizens, it would seem that this treaty would be unconstitutional.This issue came to the Supreme Court in Missouri v. Holland (1918).
Holland comes to the Supreme Court as a result of the state of Missouri suing a federal game warden to prevent him from enforcing the provisions of the treaty act. The district court dismissed the case, finding the Act constitutional and Missouri appealed to the Supreme Court. The Court found the Migratory Bird Treaty Act to be constitutional and spent the majority of the opinion rebutting the argument I posed above by declaring that treaties cannot be tested for constitutionality in the same way general acts of Congress are. Justice Oliver Wendell Holmes Jr. wrote this opinion and addresses the “Living Constitution” ideology in one of the most direct ways possible, relying on heavily abstract logic to justify the ruling. Holmes even stated that, “we are dealing with words…[that] have called into life a being.” Besides this Romantic language, the test Holmes proposed is also quite abstract, “The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.” And perhaps the paramount appeal to Living Constitutionalists, “We must consider what this country has become in deciding what that Amendment has reserved.”  While I stated before that the question at hand was not one of expediency, Holmes uses this as the foundation of the evidence for his support. I also cannot disagree that the federal government is more suited to handling this issue, but I pause for consideration any time an important legal question rests on whether there is metaphorical “invisible radiation” or not.
It is unfortunate the decision in this case came down with such political bent. Rarely does the Supreme Court stray from a legalistic adherence these days. In my opinion, Canada essentially gave the power to Congress and the President to expand the role of the federal government through the treaty loophole, or a treaty just expediently addressing a pressing issue of the day. Conceivably, there are greater implications and precedents this case set by this case. If the Senate and the President colluded, they could indelibly alter the shape of the government. This obviously does not happen often, and perhaps that is a testament to Madison’s argument that a good government can control unbridled ambition. But at the end of the day, I’ll never think about duck hunting the same.
 Massachusetts State Constitution, § 1-Article XXX (1780).
 Madison, James. "Federalist 10." Daily Advertiser, November 22, 1787.
 Madison, James. "Federalist 45." Daily Advertiser, January 26, 1788.
 Wilson, Randall K. "National Wildlife Refuges." In America's Public Lands: From Yellowstone to Smokey Bear and beyond, 151. Lanham: Rowman & Littlefield, 2014.
 "Migratory Bird Treaty Act." U.S. Fish & Wildlife Service - Migratory Bird Program | Conserving America's Birds. Accessed November 27, 2016. https://www.fws.gov/birds/policies-and-regulations/laws-legislations/migratory-bird-treaty-act.php.
 Missouri v. Holland (April 19, 1920).
Photo Credit: Flickr User Photo Phiend
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