Interpretive Federalism and the Treaty Power Implications of Sanchez-Llamas v. Oregon


In the wake of the federalism retrenchment brought about by Supreme Court precedents of the past two decades, some scholars have challenged the vitality of Missouri v. Holland, the Court’s canonical explication of the treaty power. Examining this retrenchment and the academic debate it has touched off, this Note considers whether the Court’s recent decision in Sanchez-Llamas v. Oregon portends the retreat from Holland’s breadth for which revisionist scholars have called. Considering three possible interpretations of that decision, this Note argues that Sanchez-Llamas is best explained not as limiting the treaty power’s scope, but rather as an attempt by the Court to use interpretive techniques to accommodate federalism-based concerns about the reach and import of the Vienna Convention on Consular Relations. Although viewing the question as a close one, this Note further cautions that the Court’s approach in Sanchez-Llamas to the task of treaty interpretation, notwithstanding its evident virtues, may end up doing more harm than good.