The Detroit International Bridge Company, owned by Manuel Moroun, is funding a referendum opposing the use of Michigan funds to build the New International Trade Crossing (NITC). He faces opposition from Canada and in the form of the Snyder administration.
The likely result of a successful referendum for Mr. Moroun is years of further litigation. The United States Constitution reserves the power to make international treaties to the national government in Washington. The International Border Crossing Agreement was legislated through Congress allowing the Secretary of State to approve border crossings.
Mr. Moroun will likely take a position that the “Reserved Powers” of the 10th Amendment leave the decision making of these Police Powers to the State of Michigan. Mr. Moroun will claim that the Reserved Powers in the State take precedence over the international treaty making powers of the federal government.
There has always been a question of how far a treaty can go. By example, Thomas Jefferson had reservations about the Louisiana Territory acquisition even after Congress authorized payment and sent Monroe to negotiate the purchase. Originally, Congress only provided money to acquire west Florida and New Orleans. Rather than simply purchasing these two areas, when Napoleon offered all of Louisiana, consisting of land on the west side of the Mississippi to the Rocky Mountains, Monroe had little choice but to accept.
As a strict constructionist, President Jefferson was concerned that the Constitution provided no authority for the federal government to enter into agreements to purchase foreign properties. Because of the immediacy and urgency created by the European War, immediate approval of the Louisiana Purchase required President Jefferson to set aside his personal concerns of constitutionality in order to allow the sale to quickly occur.
In all likelihood, Mr. Moroun will litigate the state police power reservation, claiming that the power provides that the state referenda limits any international border from entering the state, as being supreme in comparison with the international treaty making power of the federal government. If this were to occur, the whole notion of interstate commerce and international decisions being made by the federal government could be abrogated by any state restriction on the activity within the jurisdiction of the individual state. It will take years, but I am convinced that, should the Moroun amendment succeed, processing of the new bridge may be delayed for two or three more years. In the end, the federal government’s treaty making power will prevail, but we will keep the lawyers busy in the interim.