NJ Legislation Bans TSA Scanners + More

Previously, Congress had passed laws regulating the hunting of migratory waterfowl on the basis that such birds naturally migrated across state and international borders freely, and hence the regulation of the harvest of such birds could not realistically be considered to be province solely of individual states or groups of states.

Congress, disgruntled with this ruling, then empowered the State Department to negotiate with the United Kingdom, which at the time still largely handled the foreign relations of Canada, a treaty pertaining to this issue. The treaty was subsequently ratified and came into force, and required the Federal Government to enact laws regulating the capturing, killing, or selling of the protected migratory birds [1], an obligation that it fulfilled in the Migratory Bird Treaty Act of 1918. The state of Missouri then sued on the basis that the federal government had no authority to negotiate a treaty on this topic.

Many persons saw[1] and still see[2] this ruling as a dangerous implication that Congress or the President could essentially amend the Constitution by the means of treaties with other countries that would abrogate the rights of the people or the States otherwise protected by American law. These concerns came to a head in the 1950s with the Bricker Amendment, a series of proposed amendments which would have placed restrictions on the scope and ratification of treaties and executive agreements entered into by the United States. The Bricker Amendment nearly passed Congress with the required two-thirds majority. More recently, a similar provision has been proposed as the fourth article of the Bill of Federalism, a list of ten proposed amendments drafted by law professor Randy Barnett.

Thomas Healy has suggested that Missouri may not even be 'good law' - meaning that more recent decisions could be seen to overturn Missouri, and establish new limits on the Treaty power[3].