The Tenth Amendment to the Constitution holds that \u201cThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.\u201d As a general principle, this means that parental rights and family law \u2013 matters not currently addressed in the U.S. Constitution \u2013 are reserved to the jurisdiction of the States and not the federal government.<\/p>\n
Exceptions exist, for instance in the governance of locations administered by the federal government. The federal government exercises jurisdiction over military bases, national parks, and the District of Columbia, to cite the most common examples. Even family law in these areas falls under congressional power.<\/p>\n
Everywhere else, though, the issue of parental rights is reserved to the States.<\/p>\n
The Supreme Court\u2019s Missouri v. Holland<\/em> case from 1920, however, makes another significant exception. The Court in that decision held that \u201cit is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, \u00a72, the power to make treaties is delegated expressly [to the federal government], and by Article VI treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land.\u201d<\/p>\n The Court continued, \u201cIf the treaty is valid, there can be no dispute about the validity of the statute under Article I, \u00a78, as a necessary and proper means to execute the powers of the government.\u201d (252 U.S. 416, at 432)<\/p>\n The Court added, \u201cThe treaty in question does not contravene any prohibitory words to be found in the Constitution,\u201d and again, \u201cNo doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.\u201d (at 434)<\/p>\n As a result of the Court\u2019s finding, the prevailing conclusion reached by commentators and lower courts was that the treaty power is not limited by concerns of federalism or the Tenth Amendment\u2019s reservation of powers to the States.<\/p>\n \u201cIf this broad interpretation of Missouri v. Holland<\/em> is accurate,\u201d Senator and legal scholar Ted Cruz declared in a 2013 address, \u201cand if a President finds the limitations on the federal government\u2019s authority irksome, he has a simple path to get around it: Find any nation [with whom] to negotiate a treaty agreeing to do what you couldn\u2019t do otherwise, and if the Senate ratifies it, suddenly the federal government has authority it didn\u2019t have before. That is a radical interpretation of the treaty power, and that is what is at stake in Bond<\/em>.\u201d<\/p>\n Continue reading with Bond v. United States<\/em> (2014)<\/a>.<\/p>\n
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