By U.S. Const. art. II, § 2, the power to make treaties is delegated expressly, and by U.S. Const. art. 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. If the treaty is valid there can be no dispute about the validity of the statute implementing the treaty under U.S. Const. art. I, § 8, as a necessary and proper means to execute the powers of the government.
The State brought a bill in equity, which challenged the Migratory Bird Treaty Act of July 3, 1918, 40 Stat. 755, and the regulations made by the Secretary of Agriculture in pursuance of the same, claiming that the treaty was an unconstitutional interference with appellant's sovereign rights under the Tenth Amendment, which included absolute control of wild game and birds within the State's borders. The State also alleged a pecuniary interest, as owner of the wild birds within its borders. The district court dismissed the action on the ground that the act of Congress was constitutional. On appeal to the United States Supreme Court, the Court affirmed the dismissal, concluding that the power to make the treaty had been expressly delegated to the United States under U.S. Const. art. II, § 2 and art. VI. The Court noted that the treaty did not contravene any prohibitory words found in the federal constitution, nor was the subject matter, the regulation of migratory birds, forbidden by some invisible radiation from the general terms of the Tenth Amendment.
Are the treaty and statute considered void as an interference with the rights reserved to the States?
The State as we have intimated founds its claim of exclusive authority upon an assertion of title to migratory birds, an assertion that is embodied in statute. No doubt it is true that as between a State and its inhabitants the State may regulate the killing and sale of such birds, but it does not follow that its authority is exclusive of paramount powers. To put the claim of the State upon title is to lean upon a slender reed. Wild birds are not in the possession of anyone; and possession is the beginning of ownership. The whole foundation of the State's rights is the presence within their jurisdiction of birds that yesterday had not arrived, tomorrow may be in another State and in a week a thousand miles away. If we are to be accurate we cannot put the case of the State upon higher ground than that the treaty deals with creatures that for the moment are within the state borders, that it must be carried out by officers of the United States within the same territory, and that but for the treaty the State would be free to regulate this subject itself.
Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld.