In 1918, Congress passed the Migratory Bird Treaty Act to enforce a treaty that the United States entered with Great Britain to protect migratory birds in North America. At the time, Great Britain largely handled the foreign affairs of Canada, which is why Great Britain entered a treaty protecting birds in Canada. The head of U.S. Game (in charge of federal hunting, fishing, etc. licensing) threatened to enforce the Migratory Bird Treaty Act and arrest those who violate it. In response, the State of Missouri sued on the basis that the federal government had no authority to enter such a treaty because of the Tenth Amendment. The Supreme Court found no violation of the Constitution and upheld the law. The majority said that the Tenth Amendment protects a state’s right to pass a law enforcing the Migratory Bird Treaty Act at the state level, but the Supremacy Clause (Article 6, Clause 2) allows the federal government to pass treaties which are the “supreme law of the land” and take precedent over state-level legislation and could even possibly not be subject to judicial review as well. There is some concern with this decision that the federal government can use treaties with other countries to amend the Constitution. It is unclear how broad Missouri can be applied to the states’ compliance of federal treaties. However, Reid v. Covert (1957) said that no treaty could come into direct violation with the Constitution, limiting the power of treaties.

Missouri v. Holland

252 U.S. 416 (1920)

(The Migratory Birds Treaty; The Treaty Power)


On December 8, 1916, a treaty between the United States and Great Britain was proclaimed by the President. It recited that many species of birds in their annual migrations traversed certain parts of the United States and of Canada, that they were of great value as a source of food and in destroying insects injurious to vegetation but were in danger of extermination through lack of adequate protection. It, therefore, provided for specified close seasons and protection in other forms and agreed that the two powers would take or propose to their law-making bodies the necessary measures for carrying the treaty out. 39 Stat. 1702. The above-mentioned Act of July 3, 1918, entitled an act to give effect to the convention, prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by the Secretary of Agriculture. Regulations were proclaimed on July 31, and October 25, 1918. 40 Stat. 1812; 1863. It is unnecessary to go into any details, because, as we have said, the question raised is the general one whether the treaty and statute are void as an interference with the rights reserved to the States.

Missouri v. Holland, 252 U.S. 416 (1920)

Missouri v. Holland, 252 U.S. 416 (1920)

Missouri v. Holland, 252 U.S. 416 (1920)


The ground of the bill is that the statute is an unconstitutional interference with the rights reserved to the States by the Tenth Amendment and that the acts of the defendant done and threatened under that authority invade the sovereign right of the State and contravene its will manifested in statutes.


To answer this question, it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, § 2, the power to make treaties is delegated expressly, 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. If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government. The language of the Constitution as to the supremacy of treaties being general, the question before us is narrowed to an inquiry into the ground upon which the present supposed exception is placed.

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.

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. 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.

Valid treaties of course "are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States." No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.

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.

Is there anything we missed? Anything we should remove? Let us know your thoughts!


Key Takeaway

1.     It's not enough to refer to the 10 A, because the Constitution also gives power to the federal government to institute treaties and that's what this is. Treaties become the supreme law of the land just like statutes.

Court Syllabus:

Protection of its quasi sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional.

The Treaty of August 16, 1916, 39 Stat. 1702, with Great Britain, providing for the protection, by close seasons and in other ways, of migratory birds in the United States and Canada, and binding each power to take and propose to their law-making bodies the necessary measures for carrying it out, is within the treaty-making power conferred by Art. II, § 2, of the Constitution; the Act of July 3, 1918, c. 128, 40 Stat. 755, which prohibits the killing, capturing or selling any of the migratory birds included in the terms of the treaty, except as permitted by regulations compatible with those terms to be made by the Secretary of Agriculture, is valid under Art. I, § 8, of the Constitution, as a necessary and proper means of effectuating the treaty; and the treaty and statute, by bringing such birds within the paramount protection and regulation of the Government do not infringe property rights or sovereign powers, respecting such birds, reserved to the States by the Tenth Amendment.

With respect to rights reserved to the States, the treaty-making power is not limited to what may be done by an unaided act of Congress.

How the Justices Voted

Majority: Holmes, joined by White, McKenna, Day, McReynolds, Brandeis, Clarke

Dissent: Van Devanter, Pitney