(Last update: February 8, 2001)

TREATIES: A SOURCE FOR FEDERAL MUNICIPAL POWER

    Within the last decade, many people have been utterly astonished at the phenomenal growth and influence of the so-called environmental movement. From its "salad days" of the early seventies, this movement has blossomed so quickly that it now has the visible support of giant corporations and powerful political figures. But, there appears to be a hidden agenda behind the environmental movement with its promotion of an environmental treaty.

    Quite obviously, environmental legislation is inherently the proper subject of legislation for the State, and many States currently have such acts in effect within their jurisdictions. At the federal level, the jurisdiction of the United States is constrained by the operation of Art. 1, § 8, cl. 17 of the U. S. Constitution, and the multitude of decided cases regarding this part of the Constitution declares that the United States has territorial jurisdiction solely within Washington, D.C., the federal enclaves inside the States, and the territories and insular possessions of the United States. The possession of territorial jurisdiction is essential under this constitutional provision for federal municipal law such as environmental legislation to apply. Within the territories and possessions of the United States, the federal government possesses power similar to that of a State legislature; see Berman v. Parker, 348 U.S. 26, 31, 75 S.Ct. 98, 102 (1954); and Cincinnati Soap Co. v. United States, 301 U.S. 308, 317, 57 S.Ct. 764, 768 (1937). Therefore, municipal environmental legislation enacted by Congress could readily apply in these areas within the jurisdiction of the United States. Logically, a consideration of solely this part of the Constitution would dictate a conclusion that this type of federal municipal law could apply only within those areas subject to the jurisdiction of the United States, and not within the jurisdiction of the States.

    The police power is vested in the States and not the federal government; see Wilkerson v. Rahrer, 140 U.S. 545, 554, 11 S.Ct. 865, 866 (1891) (the police power "is a power originally and always belonging to the States, not surrendered to them by the general government, nor directly restrained by the constitution of the United States, and essentially exclusive"); Union National Bank v. Brown, 101 Ky. 354, 41 S.W. 273 (1897); John Woods & Sons v. Carl, 75 Ark. 328, 87 S.W. 621, 623 (1905); Southern Express Co. v. Whittle, 194 Ala. 406, 69 So.2d 652, 655 (1915); Shealey v. Southern Ry. Co., 127 S.C. 15, 120 S.E. 561, 562 (1924) ("The police power under the American constitutional system has been left to the states. It has always belonged to them and was not surrendered by them to the general government, nor directly restrained by the constitution of the United States * * * Congress has no general power to enact police regulations operative within the territorial limits of a state"); and McInerney v. Ervin, 46 So.2d 458, 463 (Fla. 1950). But every day, the people of this country experience actions of the feds outside the jurisdiction of the United States and inside the jurisdiction of the States. Precisely what provision of the U.S. Constitution authorizes this conduct by a variety of federal agencies? Moreover, how can we determine what is the real jurisdiction of any federal agency?

    By statute, all federal agencies must confine their activities to the jurisdiction delegated to them; see 5 U.S.C. §558. While this is a simple statutory command, there is an evident problem in that most federal agencies fail to publish any statements, either in the Code of Federal Regulations or some other source, which define their respective jurisdictions. The C.I.A. is one agency where it is easy to determine its jurisdiction because a statute has deprived it of any domestic jurisdiction; see Weissman v. C.I.A., 565 F.2d 692, 696 (D.C. Cir. 1977). [1] However, to determine the jurisdiction of other federal agencies requires some study.

    Perhaps the best way to determine the jurisdiction of any given federal agency is to examine various cases regarding the subject matter of that agency. For example, the United States Constitution does not provide that Congress has any authority concerning the fish and wildlife within this country and this has been noted in several cases. In McCready v. Virginia, 94 U.S. 391, 394, 395 (1877), the Supreme Court held regarding the fish within the oceans:

"[T]he States own the tidewaters themselves and the fish in them, so far as they are capable of ownership while running."

"The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the State."

    Like fish, the Constitution simply grants no authority to the federal government to control the wildlife within the States of this nation and this is noted in several cases. A ready example of such a case is United States v. Shauver, 214 F. 154, 160 (E.D.Ark. 1914), which concerned the question of where the Migratory Bird Act of March, 1913, could apply. Via this act, Congress sought to extend protection to migratory birds by limiting the hunting season and otherwise placing constraints upon hunting of these birds. As is only natural, upon adoption of this act federal law enforcement officials started enforcing it and here they had arrested Shauver in Arkansas for shooting and killing migratory birds. Shauver moved to dismiss the indictment filed against him on the grounds that the act contravened the 10th Amendment by invading the jurisdiction of the States upon a matter historically reserved for legislation by the States. In deciding that this act was unconstitutional, Judge Trieber noted that the common law provided that the States essentially owned the birds within their borders and State legislation was the sole source by which control of hunting could be accomplished. In so concluding, he held:
"It is the people who alone can amend the Constitution to grant Congress the power to enact such legislation as they deem necessary. All the courts are authorized to do when the constitutionality of a legislative act is questioned is to determine whether Congress, under the Constitution as it is, possesses the power to enact the legislation in controversy; their power does not extend to the matter of expediency. If Congress has not the power, the duty of the court is to declare the act void. The court is unable to find any provision in the Constitution authorizing Congress, either expressly or by necessary implication, to protect or regulate the shooting of migratory wild game in a state, and is therefore forced to the conclusion that the act is unconstitutional."
    Notwithstanding Judge Trieber's decision, implementation of the act did not stop and it was thereafter enforced within Kansas, where a fellow named McCullagh was arrested for killing migratory birds. In United States v. McCullagh, 221 F. 288, 293 (D.Kan. 1915), the issue of the constitutionality of the 1913 Migratory Bird Act was again before a different court and it, relying upon its own research of the law as well as the decision in Shauver, likewise concluded that this act was unconstitutional:
"[T]he exclusive title and power to control the taking and ultimate disposition of the wild game of this country resides in the state, to be parted with and exercised by the state for the common good of all the people of the state, as in its wisdom may seem best."
    Consideration of the above cases, which appear to be the only ones of that period dealing with migratory birds, leads to the conclusion that some powerful federal officials desired the enactment of this law to expand the scope of federal authority, and the laboratory experiment for determining whether the judiciary would declare that Congress possessed power to control hunting was started within the heartland of America, Arkansas and Kansas. But here, those seeking greater federal power met their defeat, at least temporarily. To secure such power, these parties went back to the drawing board and what they developed gave them the power they sought.

    In 1916, the United States and Great Britain, on behalf of Canada, adopted the Migratory Bird Treaty (39 Stat. 1702) and thereafter Congress in 1918 passed another Migratory Bird Act (40 Stat. 755) to implement the provisions of the treaty, this act being slightly improved over the previous version as experience would thus dictate. As this occurred, federal law enforcement officials again started to enforce the new act in another experiment to determine whether this time, because of the treaty, they had achieved the municipal power they so dearly loved. Again, they started enforcement activities within Arkansas and the case they developed was again assigned to Judge Trieber.

    Within Arkansas in 1919, a man named Thompson was arrested for shooting these protected migratory birds and this case was assigned to the very same judge who had rendered the decision in Shauver, supra; see United States v. Thompson, 258 F.257 (E.D.Ark. 1919). Here, thinking he had a very favorable judge, Thompson raised the very same argument as Shauver which had previously proved successful in front of Judge Trieber. But this time around, things were different and the federales were acting upon the authority of a treaty and this one change within the law dictated an entirely different result. In upholding the act and thus its application within the jurisdiction of Arkansas, Judge Trieber carefully analyzed the prior decisions rendered by the Supreme Court which illustrated the operation of treaties and how the same could provide federal jurisdiction for a criminal offense:

"Law can only prescribe the conduct for the people within the jurisdiction of the lawmaker, while treaties are to affect rights and privileges of subjects of foreign countries and of our citizens in such countries. Treaties are reciprocal, and in all instances the same rights and privileges are granted to the citizens and subjects of each of the contracting parties in the respective countries," Id., at 258.

"To subject the treaty power to all the limitations of Congress in enacting the laws for the regulations of internal affairs would in effect prevent the exercise of many of the most important governmental functions of this nation, in its intercourse and relations with foreign nations, and for the protection of our citizens in foreign countries. The states of the Union may enact all laws necessary for their local affairs, not prohibited by the national or their own Constitution; but they are expressly prohibited from entering into treaties, alliances, or confederations with other nations. If, therefore, the national government is also prohibited from exercising the treaty power, affecting matters which for internal purposes belong exclusively to the states, how can a citizen be protected in matters of that nature when they arise in foreign countries," Id., at 263.

"Even in matters of a purely local nature, Congress, if the Constitution grants it plenary powers over the subject, may exercise what is akin to the police power, a power ordinarily reserved to the states," Id., at 264.

    Judge Trieber concluded that this treaty thus provided Congress with a power of municipal legislation and that treaty and its implementing act plainly operated within the State of Arkansas. A different case originating within Missouri, United States v. Samples, 258 F. 479 (W.D.Mo. 1919), ultimately made its way to the U.S. Supreme Court where an identical conclusion was reached; see Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 384 (1920) ("No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power"). See also United States v. Selkirk, 258 F. 775 (S.D. Tex. 1919); United States v. Rockefeller, 260 F. 346 (D. Mon. 1919); and United States v. Lumpkin, 276 F. 580 (N.D. Cal. 1921).

    After it was determined that the Migratory Bird Treaty thus provided a municipal power for the United States to control hunting even within the jurisdiction of a State, the next issues which arose were whether regulations under both the act and treaty were valid, the arguments made against the regulations being that the treaty was limited in scope and thus could not support very detailed regulations concerning hunting activities, which simply had to be unconstitutional as a consequence.

    In 1936, another similar treaty was made with Mexico (50 Stat. 1311) and regulations were adopted which more strenuously controlled hunting of migratory birds, these regulations covering such details as whether birds could be baited with grain. In Cochrane v. United States, 92 F.2d 623 (7th Cir. 1937), the defendants were members of a duck club and employees of the club placed duck decoys upon and sprinkled corn within the waters around the club located on an inland lake in Illinois. Unfortunately, the defendants sprang up and shot ducks from a blind on the edge of the lake at a time when the federales were looking, and they were arrested for killing ducks. In defense, these parties contended that the regulations invaded the reserved rights of the States protected via the Tenth Amendment and that the regulations were beyond the scope of the treaties. But, the Seventh Circuit summarily rejected these arguments finding that the regulations were valid both under the treaties as well as the interstate commerce powers of Congress.

    In Cerritos Gun Club v. Hall, 96 F.2d 620 (9th Cir. 1938), the operators of a hunting club were informed that if they performed activities regularly conducted in the past of baiting birds with grain before the start of the federally approved hunting season, they would be prosecuted for violating new regulations. The club sued to enjoin enforcement but the Ninth Circuit concluded similarly as in Cochrane. In United States v. Reese, 27 F.Supp. 833 (W.D.Tenn. 1939), the federal act and regulations which protected "these feathered friends of mankind" were held valid and enforceable within that State.

    This same conclusion was reached in Bailey v. Holland, 126 F.2d 317 (4th Cir. 1942). Here, the United States had established a bird refuge off the coast of Virginia, that refuge consisting of waters within a bay as well as a small plot of land that the U.S. had purchased. But, a regulation was promulgated which closed adjoining private lands to hunting and a duck club adversely affected sued to enjoin implementation of that regulation. In rejecting the club's argument, it was concluded that the bird treaties empowered the feds to enact these regulations even though they had operation upon private lands within State jurisdiction. These treaties also authorize the feds to establish bird refuges; see United States v. 2,271.29 Acres, 31 F.2d 617, 622 (W.D.Wis. 1928).

    Thus as shown via the above cases, the U.S. Fish & Wildlife Service finds its constitutional authority predicated upon the treaty power of Congress; see United States v. Conners, 606 F.2d 269, 272 (10th Cir. 1979); and Alaska Fish & Wildlife Fed. & Outdoor Council, Inc. v. Dunkle, 829 F.2d 933 (9th Cir. 1987). After the adoption of several fishing treaties or conventions, Congress created the U.S. Fisheries Commission; see 16 Stat. 594. After the Convention for Protection of Migratory Birds was ratified on August 29, 1916, 39 Stat. 1702, the predecessor of this agency apparently acquired authority over migratory birds. Later, The Convention on International Trade in Endangered Species of Wild Fauna & Flora was adopted by the U.S. Senate on August 3, 1973; see 27 U.S.T. 1087. As a result of this treaty, on December 28, 1973, Congress enacted the "Endangered Species Act," 87 Stat. 884. Several cases have noted that the authority to regulate and control endangered species arises from this treaty; see Palila v. Hawaii Dept. of Land & Natural Resources, 471 F.Supp 985 (D. Haw. 1979); Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984); and Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990). The wetlands convention was ratified in 1986 and about 30 days later on November 10, 1986, Congress adopted the "Emergency Wetlands Resources Act of 1986," 100 Stat. 3582. Clearly, the U.S. Fish & Wildlife Service is as much a treaty based agency as the Great Lakes Fishery Commission (16 U.S.C. §931), the Pacific Salmon Commission (16 U.S.C. §3631), and the International Pacific Halibut Commission (see United States v. Cameron, 888 F.2d 1279 (9th Cir. 1989)). Therefor it has an "international" jurisdiction.

    There are other examples of treaties being used to provide federal jurisdiction. Of course, Congress completely lacks the delegated, constitutional authority to control prostitution within the States. However, the Agreement for Repression of Trade in White Women was ratified by the Senate on March 1, 1905; see 35 Stat. 1979. The implementing legislation for this treaty was the White Slave Traffic Act, 36 Stat. 825, which included criminal penalties. The Supreme Court has noted that this treaty provided jurisdiction to enact laws on this subject; see United States v. Portale, 235 U.S. 27, 35 S.Ct. 1 (1914). But, even with jurisdiction being founded upon this treaty, there are limits to prosecutions for violations thereof and everything relating to prostitution cannot be controlled; see Keller v. United States, 213 U.S. 138, 29 S.Ct. 470 (1909). Like prostitution, congressional control over obscene publications arises from treaties; see Agreement on Obscene Publications, ratified on January 13, 1911 (37 Stat. 1511), and the implementing laws at 35 Stat. 1129 (March 4, 1909), and 36 Stat. 1339 (March 4, 1911), which are currently codified at 18 U.S.C. §1461. The federal laws making penal the taking of hostages are predicated on a treaty; see United States v. Lin, 101 F.3d 760, 766 (D.C.Cir. 1996)("Congress enacted the Hostage Taking Act to implement the International Convention Against the Taking of Hostages"); and United States v. Lue, 134 F.3d 79 (2nd Cir. 1998). Treaty based federal criminal laws have their origin in the congressional authority to punish crimes against the laws of nations; see Art. 1, § 8, cl. 10 of the U.S. Constitution. [2] The federal police power is therefore, in large part, based on treaties.

    The U.S. Constitution does not grant power to Congress to control air traffic or telecommunications. After the Wright brothers starting flying at Kitty Hawk, air traffic achieved a phenomenal growth, resulting in the adoption of several treaties on this subject. The Commercial Aviation Convention was adopted by the U.S. Senate on February 20, 1928; see 47 Stat. 1901. Later, the International Civil Aviation Treaty was adopted on December 7, 1944; see 61 Stat. 1180. Both of these treaties substantially covered all aspects of aviation, setting up precisely what we see today in American airports, many of which are controlled by the federal government. To implement the first treaty, Congress enacted The Civil Aeronautics Act of 1938, 52 Stat. 973, which created the F.A.A. When the federal government started funding improvements at Hartsfield Airport in Atlanta, its name was changed to Hartsfield International. Yet we do have some airports which have never been controlled by the federal government such as Houston's Hobby Airport which is governed by the city of Houston; for this reason, its name has not been changed to Hobby International. For telecommunications, the International Radio Convention, 45 Stat. 2760, was adopted by the U.S. Senate on March 21, 1928, and a second International Radio Convention, 49 Stat. 2392, followed thereafter on December 9, 1932. On June 19, 1934, Congress adopted the Communications Act of 1934, 48 Stat. 1064, which created the Federal Communications Commission. See excellent history here (a website) and article.  Thus, both the F.A.A. and F.C.C. are treaty based, federal agencies which implement treaties our nation has ratified with other countries and therefore they have an international jurisdiction.

    The U.S. Constitution does not grant authority to Congress to control trademarks within the States and the Supreme Court has so held. In United States v. Steffens (The Trade-Mark Cases), 100 U.S. 82 (1879), the Court dismissed some indictments which charged crimes of infringement of certain registered trademarks. As a result of this decision, a variety of treaties covering this subject were adopted thereafter, and some of the more noteworthy were adopted early in this century; see Pan American Trademark Convention, 44 Stat. 2494, ratified on January 12, 1927, and Pan American Convention for Uniformity of Nomenclature for Classification of Merchandise, 44 Stat. 2559, ratified on January 12, 1927. It is these treaties which provide jurisdiction for the federal government over this subject matter. If Congress lacks power over trademarks except via treaties, it logically follows that Congress does not have any control over the similar and constitutionally indistinguishable activity of labeling of products except through treaties; yet labeling is an activity of great interest for the F.D.A.

    Control over the possession and sale of any item within the States is not a power possessed by Congress. This was so held in United States v. DeWitt, 76 U.S. (9 Wall.) 41, 45 (1870), which tested the constitutionality of a federal revenue act making it illegal to sell illuminating oil of a certain flammability. Here, the Court held that Congress did not have such power:

"As a police regulation, relating exclusively to the internal trade of the States, it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation, as, for example, in the District of Columbia. Within state limits, it can have no constitutional operation."
The decision in DeWitt continues to be valid decisional authority as Justice Thomas relied upon it in his concurring opinion in United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624 (1995).

    In 1912, the Senate adopted the International Opium Convention and Congress might have enacted about the same time legislation to implement it. If it did, the implementing act failed to mention that its authority was derived from the treaty. In any event, an act controlling distribution of opium became the basis for the indictment of a man who was merely possessing opium and a dismissal of his indictment went before the Supreme Court. In United States v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658 (1916), the Court had before it the validity of this act which the government claimed operated within the jurisdiction of the States. However, based upon DeWitt, supra, the Court held that dismissal of the indictment was mandated because the act unconstitutionally invaded the jurisdiction of the States. In an attempt to save the act and the indictment against this defendant, the government surprisingly argued that the act, although silent on the point, was really one which implemented the Opium Convention. Nonetheless, the Court concluded that the failure of the act to state its premise within the Convention precluded its application on the grounds asserted by the government. [3] See also United States v. Ah Hung, 243 F. 762, 764 (E.D.N.Y. 1917)("Mere possession of an article injurious to health would not render a person liable to a United States statute unless some constitutional basis for the statute gives the United States the right to regulate upon the subject").

    Some years later, the 1912 International Opium Convention was supplemented by a similar convention of 1931 (48 Stat. 1543), which was thereafter implemented by appropriate legislation designed to control the production of poppy within this country. In Stutz v. Bureau of Narcotics, 56 F.Supp. 810, 813 (N.D.Cal. 1944), some poppy growers sought an injunction to the enforcement of the provisions of the act implementing the convention, the argument they made being that the act invaded the reserved powers of the States in contravention of the Tenth Amendment. In rejecting this argument and holding that the act applied within the jurisdiction of California, the court declared:

"The competency of the United States to enter into treaty stipulations with foreign powers designed to establish, through appropriate legislation, an internationally effective system of control over the production and distribution of habit forming drugs is not questioned. The obligations of the United States incurred as a party to the two Conventions heretofore mentioned were lawfully undertaken in the proper exercise of its treaty making power. And Congress is constitutionally empowered to enact whatever legislation is necessary and proper for carrying into execution the treaty making power of the United States."
    Other cases have also noted that control over drugs by the federal government arises from these treaties; see United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972); and NORML v. Ingersoll, 497 F.2d 654 (D.C.Cir. 1974), later opinion at 559 F.2d 735 (D.C.Cir. 1977). The jurisdiction of the D.E.A. is therefore based upon these drug treaties and it thus only has an international jurisdiction.

    The above analysis of various decisions relating to the powers of Congress shows that it does not have the inherent authority to regulate or control either drugs or labeling, and that the only way federal jurisdiction could be acquired over these activities within the jurisdiction of the States would be by means of treaties. If the jurisdiction of the F.D.A. was truly treaty based, one might expect that its criminal enforcement powers would be exercised only at the borders of this country. In fact, this is the case for the F.D.A. because the only description of the authority of the F.D.A. district director is found at 21 C.F.R., §1.83, which provides as follows:

"The term 'district director' means the director of the district of the Food and Drug Administration having jurisdiction over the port of entry through which an article is imported or offered for import * * * "
This C.F.R. statement constitutes an admission; see United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989)(government manuals admissible as party admissions under Fed.R.Evid. 801 (d)(2)(D)). As expected, the authority of the F.D.A. arises from a 1906 international agreement, the Agreement for Unification of Pharmacopeial Formulas for Potent Drugs; see Treaty Series 510.

    Thus, it is very clear that federal agencies such as the U.S. Fish & Wildlife Service, the F.A.A., the F.C.C., the D.E.A. and the F.D.A. have jurisdictions premised upon treaties and they therefore have an "international jurisdiction." Some of the above cases state that treaties do provide jurisdiction for the specified agency. Most of these agencies exercise the federal police power and enforce federal criminal laws. As mentioned previously, these crimes must fit within one of the constitutional categories of crimes which Congress may make penal, and that category could only be "offenses against the laws of nations." Treaties are the laws of nations and federal criminal laws which implement such treaties are obviously "offenses against the laws of nations."

    In 1933, the U.S. became a member of the International Labor Organization. In the following year, Congress passed the first federal social security act which was tied to the federal power over interstate commerce; in essence, those subject to the act were those who engaged in interstate transportation. Immediately, the constitutionality of this act was challenged and in May, 1935, the Supreme Court held that act unconstitutional in Railroad Retirement Board v. Alton R. Co., 295 U.S. 330, 368, 55 S.Ct. 758, 771 (1935). The dispositive part of this decision not only found that the federales lacked the power to adopt this social security act, but it also indicated that a vast array of social programs were equally beyond the power of Congress:

"The catalogue of means and actions which might be imposed upon an employer in any business, tending to the satisfaction and comfort of his employees, seems endless. Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. Can it fairly be said that the power of Congress to regulate interstate commerce extends to the prescription of any or all of these things? Is it not apparent that they are really and essentially related solely to the social welfare of the worker, and therefore remote from any regulation of commerce as such? We think the answer is plain. These matters obviously lie outside the orbit of congressional power."
It must be noted that today there are federal laws that make "provision for free medicine, food, housing," and others. This case has never been reversed, although the socialists have criticized it. If it is still valid, then what is the constitutional basis for the very programs which the Court held were unconstitutional? Is it just possible that these programs have a constitutional foundation of which most people are unaware?

    The second social security act was adopted in August, 1935, without any amendment to the U.S. Constitution and just a mere 3 months after the decision in Alton. Is it to be supposed that just after the ink dried on the opinion in Alton, Congress deliberately passed another and broader unconstitutional law? Since the knowing adoption of an unconstitutional law must be rejected, there must be some other explanation of the constitutional foundation for the second act.

    When the second federal social security law was adopted, it was also immediately challenged. The federal appellate courts were split regarding the validity of this law, with some finding this second social security attempt unconstitutional on the basis of Alton, while others upheld it. Because of this split in the circuits, the Supreme Court decided to review those cases which questioned just the tax itself. Finally in May, 1937, the Supreme Court rendered its decisions in Charles C. Steward Mach. Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883 (1937), and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904 (1937), which held the tax valid. How are these cases reconciled with Alton?

    A close examination of the second line of social security decisions reveals the answer. In Steward Machine, 301 U.S., at 585, the Court touched upon the constitutional basis for the law in the following passage:

"The proceeds of the excise when collected are paid into the Treasury at Washington, and thereafter are subject to appropriation like public moneys generally. Cincinnati Soap Co. * * * "
In Davis, 301 U.S., at 641, the Court again touched lightly upon the constitutional basis for the act with this simple statement:
"'When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress.' United States v. Butler, supra, 297 U.S. 1, at page 67, 56 S.Ct. 312, 320, 80 L.Ed. 477, 102 A.L.R. 914. Cf. Cincinnati Soap Co. v. United States, 301 U.S. 308, 57 S.Ct. 764, 81 L.Ed. ___, May 3, 1937; United States v. Realty Co., 163 U.S. 427, 440, 16 S.Ct. 1120, 41 L.Ed. 215; Head Money Cases, 112 U.S. 580 * * * "
Since both of these cases mentioned and relied upon Cincinnati Soap, it must be reviewed.

    Congress has adopted many acts for relief of the poor applicable within its jurisdiction such as Washington, D.C.; see 16 Stat. 65. Predictably, the Cincinnati Soap case is an insular possessions case, specifically concerning the Philippines. The Butler case found the agricultural features of the NIRA unconstitutional, and the Head Money Cases concerned a tax upon aliens. Obviously, the Supreme Court was stating that social security originally applied only within the jurisdiction of the United States, specifically Washington, D.C., the federal enclaves within the states, the territories and insular possessions. See also Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016 (1893).

    However, there is now a treaty basis for social insecurity. Article 22 of the UN Charter's Universal Declaration of Human Rights declares that everyone is entitled to social security:

"Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co­operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality."
If the federal social security act was originally jurisdictional, it became international with our entry into the UN. Clearly, treaties have an affect upon the social security issue. In fact, the ILO first proposed such an idea on June 22, 1935, a mere 6 weeks after the decision in Alton.

    The International Covenant on Civil and Political Rights, ratified by the U.S. Senate in the 1992, provides in Article 24 that every "child shall be registered immediately after birth." More recently, both NAFTA and GATT require the numbering of children at birth, which necessitates implementing federal laws. Obviously, these treaties mandate the recent advent of forcing social security numbers upon newborns.

    It has long been understood that Congress has no power to regulate the practice of medicine within the States; see Linder v. United States, 268 U.S. 5, 18, 45 S.Ct. 446 (1925)("Obviously, direct control of medical practice in the states is beyond the power of the federal government"); United States v. Anthony, 15 F.Supp. 553, 555 (S.D.Cal. 1936); F.T.C. v. Simeon Management Corp., 391 F.Supp. 697 (N.D.Cal. 1975), affirmed at 532 F.2d 708 (9th Cir. 1976); and United States v. Evers, 453 F.Supp. 1141, 1150 (M.D.Ala. 1978). Of course under the rationale of Alton, supra, Congress lacks the constitutional authority to provide "free medical" care throughout the nation, although this presently occurs. If Hillary and her husband had been successful in securing a national health care program when they first took office, would the constitutional basis for such federal legislation have been Article 12 of the International Covenant on Economic, Social and Cultural Rights, which provides that everyone has the right to "the highest attainable standard of physical and mental health" arising from the "creation of conditions which would assure to all medical services and medical attention in the event of sickness." Would not the draconian "medical" crimes set forth in Hillary's proposed legislation have been classified as "offenses against the laws of nations"?

    There is nothing in the U.S. Constitution which grants authority to Congress to control or make criminal mere possession of firearms; see United States v. DeWitt, supra; United States v. Fox, 95 U.S. 670, 672 (1878); Patterson v. Kentucky, 97 U.S. 501 (1879); United States v. Steffens (The Trade-Mark Cases), supra; Keller v. United States, supra; Hill v. Wallace, 259 U.S. 44, 42 S.Ct. 453 (1922); and Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210 (1963). If there is nothing in the Constitution which expressly grants power to Congress to control firearms, especially in view of the Second Amendment, it is perhaps useful to look in other areas to learn how such control is achieved.

    The manner by which the federal government obtained jurisdiction in modern times over the subject matter of firearms has also arisen through treaties. For example, one of the first was the treaty with certain African powers regarding traffic in slaves, firearms and liquor; see treaty at 27 Stat. 886. Thereafter, the President issued a variety of proclamations over the next 20 years controlling the international firearms traffic; see those at 29 Stat. 870; 29 Stat. 881; 34 Stat. 3183; 37 Stat. 1732; 37 Stat. 1733; 39 Stat. 1726; 39 Stat. 1743; 39 Stat. 1756; 39 Stat. 1757; 39 Stat. 1770; 39 Stat. 1798; 39 Stat. 1805; 39 Stat. 1814; and 41 Stat. 1762. Then on January 31, 1922, Congress adopted a joint resolution which authorized the President to issue proclamations prohibiting the international transport of firearms; see 42 Stat. 361. Based upon this resolution, the President issued several more proclamations; see 43 Stat. 1934; 43 Stat. 1942; 43 Stat. 1946; 43 Stat. 1950; 43 Stat. 1965; and 44 Stat. 2625.

    Then the Senate ratified on May 21, 1930, the Treaty concerning the Duties and Rights of States in the Event of Civil Strife, wherein Art. 1, ¶ 3, prohibited the traffic in arms; see 46 Stat. 2749. Following the treaty and on the eve of an international conference in Geneva seeking to implement an arms control convention, Congress adopted another resolution on May 28, 1934, 48 Stat. 811, which prompted the issuance of another Presidential proclamation the same day; see 48 Stat. 1744. On June 26, 1934, the National Firearms Act of 1934, 48 Stat. 1236­1240, was enacted, and the next day, the President issued another proclamation (49 Stat. 3399). Another resolution and more proclamations were later adopted and issued; see 49 Stat. 1082; 49 Stat. 3471; 49 Stat. 3474; 49 Stat. 3480; 49 Stat. 3498; 49 Stat. 3503; 49 Stat. 3527; 50 Stat. 121; 50 Stat. 1831; and 50 Stat. 1834. This demonstrates that the power being exercised by Congress has been that to control international flows of firearms.

    While federal gun laws were initially tied to the treaty, these resolutions and proclamations relating to international traffic in firearms, this does not mean that the constitutional foundation for federal control of firearms is entirely based upon this treaty and the acts and proclamations noted above. Title VI of the "Anti­Drug Abuse Amendments Act of 1988," P.L. 100­690, 102 Stat. 4181, 4359­62, added some more sections to Title 18, U.S.C., §§ 924(f) and (g) and 930. This demonstrates that federal control over firearms likewise is derived from the above mentioned drug treaties.

    Of course, the Supreme Court has upheld the federal firearms laws; see Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554 (1937). But use of the federal taxing power to regulate firearms at the federal level appears to have ended; see United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D. Ill. 1991); and United States v. Dalton, 960 F.2d 121 (10th Cir. 1992). Just like what the Supreme Court held in DeWitt, there are still problems concerning federal laws which just simply outlaw mere possession of guns; see United States v. Lopez, 2 F.3d 1342 (5th Cir. 1993); Mack v. United States, 856 F.Supp. 1372 (D.Az. 1994), rev., 66 F.3d 1025 (9th Cir. 1995); and Printz and Mack v. United States, 65 L.W. 4731 (June 27, 1997), which reversed the Ninth Circuit opinion and affirmed the district court in the Mack case. [4] But the bigger problem concerns the jurisdiction of the agency which enforces these gun laws; see United States v. F.J. Vollmer & Co., Inc., 1 F.3d 1511 (7th Cir. 1993). [5]

    The above discussion is not an attempt to fully explain the treaty powers of Congress, but it does offer a ready example of their operation. Suffice it to say that often the courts have found certain acts of Congress unconstitutional, yet Congress then acquires the same power by adopting a treaty on the subject. Federal criminal laws based upon treaties enforce the laws of nations.

    The United States has tremendous external power; see United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216 (1936); and United States v. Peace Information Center, 97 F.Supp. 255 (D.D.C. 1951). The United Nations Charter is a treaty; see Balfour, Guthrie & Co. v. United States, 90 F.Supp. 831 (N.D.Cal. 1950); Sei Fujii v. State, 242 P.2d 617 (Cal. 1952); and United States v. Steinberg, 478 F.Supp. 29, 33 (N.D.Ill. 1979). There are decisions holding that this power does not permit what the constitution forbids; see Foster v. Nielson, 2 Pet. 314 (1829); Amaya v. Stanolind Oil & Gas Co., 158 F.2d 554 (5th Cir. 1946); Farmer v. Rountree, 149 F.Supp. 327 (M.D.Tenn. 1956); Pierre v. Eastern Air Lines, Inc., 152 F.Supp. 486 (D.N.J. 1957); and Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222 (1957). Yet, it is likewise clear that most people perceive no definitive limits regarding this extensive power; more surprisingly, there has been little litigation which defines the limits of the application of what is essentially international law, which utilizes admiralty procedures in federal court.

    The former U.S. Attorney General, William Barr, acquired his position by realizing the extent of this external power of the United States. It was his advice which authorized the invasion of Panama to secure the capture of General Noriega and this precisely catapulted him into that high office. His office secured that decision of the Supreme Court holding that the Fourth Amendment does not apply to searches of homes by federal officials within Mexico; see United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 770 (1990). And recently, this external power of the United States was declared to be the basis for lawfully kidnapping parties in other countries; see United States v. Alvarez-Machain, 504 U.S. 655, 112 S.Ct. 2188 (1992).

     All of this is a harbinger of things to come. As shown above, the Seventh Circuit held in Cochrane that the Migratory Bird Treaty and its implementing act and regulations were enforceable within the States. In Hoffman Homes, Inc. v. Administrator, E.P.A., 961 F.2d 1310 (7th Cir. 1992), opinion on reh., 999 F.2d 256 (7th Cir. 1993), the court plainly informs federal agencies that if they want municipal power, they should secure legislation which is treaty based. Here, Hoffman Homes was engaged in the building of residential homes in Illinois, and it filled in two ponds ("wetlands"), one being a small pond less than an acre in size within its subdivision. Hoffman Homes failed to comply with federal wetlands laws, and the EPA fined the company $50,000. The company ultimately appealed the imposition of these fines to the court of appeals; at first the Seventh Circuit rejected the argument that the EPA had jurisdiction over the pond and vacated the fine. But when the EPA moved for rehearing and noted the broad powers of Congress derived via treaties, the appellate court reversed its prior opinion.

    Is it not easy to contemplate what must be currently in the minds of the heads of a multitude of federal agencies? As always, these agencies seek aggrandizement with power and authority, yet based upon the delegated powers of the U.S. Constitution, they cannot directly achieve total power. But what is shown above demonstrates that the federales could potentially feign a treaty with some small island nation and thus secure municipal power. But why should they stoop so low with such a trick? What they inherently desire awaits them at their footsteps with the more facially legitimate environmental treaties which surely will flow from the Rio Summit as well as others which are being planned.

END NOTES:

    [1] See Jabara v. Kelley, 476 F.Supp. 561, 582 n. 17 (E.D. Mich. 1979): "[T]he Court is of the opinion that the FBI's investigative authority extends to authorized national security investigations involving foreign influences."

    [2] There are only a few crimes mentioned in the U.S. Constitution which Congress can make penal: treason, via Art. 1, §6, cl. 1; counterfeiting, via Art. 1, §8, cl. 6; and piracy, felonies on the high seas and offenses against the laws of nations, via Art. 1, §8, cl. 10.

    [3] This case would appear to hold that any act implementing a treaty must of necessity statutorily identify the treaty as the basis for the act. As an example, the Genocide Treaty was adopted in the spring of 1987; it was implemented by the Genocide Convention Implementation Act of 1987, P.L. 100-606, 102 Stat. 3045, which created 18 U.S.C. § 1091. However, the fact that in this case the Government asserted a treaty basis for the act notwithstanding the lack of statutory language at least indicates that other acts which really implement a treaty may likewise be silent as to the source for such legislation.

    [4] Sheriff Richard Mack, author of From My Cold, Dead Fingers, was the motivating force behind this particular constitutional challenge to the Brady law. But, the Supremes accepted certiorari in the Printz case and later the Mack case. History will cite this case as Printz v. United States; however, I refuse to accept custom in this instance and will always include Richard's name in the cite. Why don't you do likewise? Also, order his book ($15) from Rawhide Western Publishing, P.O. Box 327, Safford, AZ 85548.

    [5] It is interesting to note that the affidavit for the search warrant at Waco mentioned but one specific crime, and that appeared at the bottom of page 10: "[I]t is a violation of Title 18, United States Code, Section 922 for an illegal alien to receive a firearm."

    An excellent website which explains lots of UN machinations, particularly those regarding the environment, may be found at Sovereignty International's site, authored by Dr. Michael Coffman and Henry Lamb.

    NOTE: INHERENT INTERNATIONAL POWERS OF THE PRESIDENT    
The powers of the President regarding the conduct of international
affairs and negotiations were identified as follows in United States v. Pink, 315 U.S. 203, 62 S.Ct. 552 (1942):

        "This Court, speaking through Mr. Justice Sutherland, held that the conduct of foreign relations is committed by the Constitution to the political departments of the Federal Government; that the propriety of the exercise of that power is not open to judicial inquiry; and that recognition of a foreign sovereign conclusively binds the courts and 'is retroactive and validates all actions and conduct of the government so recognized from the commencement of its existence.' Page 328 of 301 U.S., page 760 of 57 S.Ct., 81 L.Ed. 1134. It further held (page 330 of 301 U.S., page 760 of 57 S.Ct., 81 L.Ed. 1134) that recognition of the Soviet Government, the establishment of diplomatic relations with it, and the Litvinov Assignment were  'all parts of one transaction, resulting in an international compact between the two governments.' After stating that 'in respect of what was done here, the Executive had authority to speak as the sole organ' of the national government, it added (page 330 of 301 U.S., page 761 of 57 S.Ct., 81 L.Ed. 1134): 'The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (Art. 2, s 2), require the advice and consent of the Senate.' It held (page 331 of 301 U.S., page 761 of 57 S.Ct., 81 L.Ed. 1134) that the 'external powers of the United States are to be exercised without regard to state laws or policies. The supremacy of a treaty in this respect has been recognized from the beginning.' And it added that 'all international compacts and agreements' are to be treated with similar dignity for the reason that 'complete power over international affairs is in the national government and is not and cannot be subject to any curtailment or interference on the part of the several states.' Page 331 of 301 U.S., page 761 of 57 S.Ct., 81 L.Ed. 1134. This Court did not stop to inquire whether in fact there was any policy of New York which enforcement of the Litvinov Assignment would infringe since 'no state policy can prevail against the international compact here involved.' Page 327 of 301 U.S., page 759 of 57 S.Ct., 81 L.Ed. 1134," 315 U.S. at 222-23.

        "If the priority had been accorded American claims by treaty with Russia, there would be no doubt as to its validity. Cf. Santovincenzo v. Egan, supra. The same result obtains here. The powers of the President in the conduct of foreign relations included the power, without consent of the Senate, to determine the public policy of the United States with respect to the Russian nationalization decrees. 'What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government.' Guaranty Trust Co. v. United States, supra, 304 U.S. page 137, 58 S.Ct. page 791, 82 L.Ed. 1224. That authority is not limited to a determination of the government to be recognized. It includes the power to determine the policy which is to govern the question of recognition. Objections to the underlying policy as well as objections to recognition are to be addressed to the political department and not to the courts. See Guaranty Trust Co. v. United States, supra, 304 U.S. page 138, 58 S.Ct. page 791, 82 L.Ed. 1224; Kennett v. Chambers, 14 How. 38, 50, 51, 14 L.Ed. 316. As we have noted, this Court in the Belmont case recognized that the Litvinov Assignment was an international compact which did not require the participation of the Senate. It stated (301 U.S. pages 330, 331, 57 S.Ct. pages 760, 761, 81 L.Ed. 1134): 'There are many such compacts, of which a protocol, a modus vivendi, a postal convention, and agreements like that now under consideration are illustrations.' And see Principality of Monaco v. Mississippi, 292 U.S. 313, 331, 54 S.Ct. 745, 751, 78 L.Ed. 1282; United States v. Curtiss-Wright Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 225. Recognition is not always absolute; it is sometimes conditional. 1 Moore, International Law Digest (1906), pp. 73--74; 1 Hackworth, Digest of International Law (1940), pp. 192--195. Power to remove such obstacles to full recognition as settlement of claims of our nationals (Levitan, Executive Agreements, 35 Ill.L.Rev. 365, 382--385) certainly is a modest implied power of the President who is the 'sole organ of the federal government in the field of international relations.' United States v. Curtiss-Wright Corp., supra, 299 U.S. page 320, 57 S.Ct. page 221, 81 L.Ed. 225. Effectiveness in handling the delicate problems of foreign relations requires no less. Unless such a power exists, the power of recognition might be thwarted or seriously diluted. No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation, unless the historic conception of the powers and responsibilities of the President in the conduct of foreign affairs (see Moore, Treaties and Executive Agreements, 20 Pol.Sc.Q. 385, 403--417) is to be drastically revised. It was the judgment of the political department that full recognition of the Soviet Government required the settlement of all outstanding problems including the claims of our nationals. Recognition and the Litvinov Assignment were interdependent. We would usurp the executive function if we held that that decision was not final and conclusive in the courts.

        "'All constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and obligation as if they proceeded from the legislature; * * *.' The Federalist, No. 64. A treaty is a 'Law of the Land' under the supremacy clause, Art. VI, Cl. 2, of the Constitution. Such international compacts and agreements as the Litvinov Assignment have a similar dignity. United States v. Belmont, supra, 301 U.S. page 331, 57 S.Ct. page 761, 81 L.Ed. 1134. See Corwin, The President, Office & Powers (1940), pp. 228--240," 315 U.S. at 228-30."