I think so.  The U.S. annexed Hawaii pursuant to a joint resolution of Congress in 1898.  It was not done by treaty (a treaty of annexation had been signed in 1893, but newly elected President Grover Cleveland withdrew the treaty from the Senate). It was not done as part of a military operation (though it was done during the Spanish-American War). So where did Congress get the enumerated power to pass the resolution?

Congress has power to admit new states to the Union (Article IV); perhaps this gives Congress power to acquire territories for the purposes of making them states (as with Texas).  Hawaii did eventually become a state (61 years later) but it does not appear that Congress contemplated statehood at the time its annexation.  So I doubt this power works as the basis for annexation.

Congress also has power to provide for an army and a navy, which I think implies the power to establish bases, including overseas bases.  Thus Congress could have responded to the strategic location of the Hawaiian Islands in the context of the Spanish-American War by acquiring bases there.  But I don’t think this power is enough to support the complete takeover of the entire territory.

At the time, Congress may have believed that it had extra-constitutional power to annex territories as part of the inherent sovereign power of the United States.  The Supreme Court suggested as much in Jones v. United States in 1890 (regarding acquisition of “guano islands”).  But the Court’s “sovereign powers” cases are extremely dubious as a matter of original meaning, for reasons I discuss in the early chapters of The Constitution’s Text in Foreign Affairs. (In particular, they seem flatly contrary to the 10th Amendment.)  The United States may have inherent sovereign powers under international law, but as a matter of domestic constitutional law those powers aren’t vested in the federal government (as opposed to the sovereign people) unless the Constitution says they are.

Thus I don’t see an originalist solution.  But Congress did eventually make Hawaii a state, so perhaps that cures the constitutional violation.

(Thanks to Andrew Hyman for suggesting this puzzle.  And aloha from Napili, Maui.)

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

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