Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?

Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?

Quite possibly.  Here’s the Third Circuit’s merits opinion in United States v. Bond, involving a conviction under the Chemical Weapons Convention Implementation Act of 1998.  The court upheld the conviction against a Tenth Amendment attack, this after the Supreme Court last year found Ms. Bond to have standing to press the federalism claim.  After rehearsing the academic debates on Missouri v. Holland (many citations here to Curt Bradley, David Golove, and other lawprofs), Judge Jordan’s majority opinion concludes:

Whatever the Treaty Power‟s proper bounds may be, however, we are confident that the Convention we are dealing with here falls comfortably within them.  The Convention, after all, regulates the proliferation and use of chemical weapons.  One need not be a student of modern warfare to have some appreciation for the devastation chemical weapons can cause and the corresponding impetus for international collaboration to take steps against their use.  Given its quintessentially international character, we conclude that the Convention is valid under any reasonable conception of the Treaty Power‟s scope.

So, maybe not the best test case for Missouri?  Think again.  Judge Ambro, concurring, after acknowledging the act’s constitutionality under the precedent:

But if ever there were a statute that did test those limits, it would be [this Act].  With its shockingly broad definitions, [the Act] federalizes purely local, run-of-the-mill criminal conduct.  The statute is a troublesome example of the Federal Government‟s appetite for criminal lawmaking.  Sweeping statutes like [this one] are in deep tension with an important structural feature of our Government:  “The States possess primary authority for defining and enforcing the criminal law.‟

Both Jordan and Ambro expressly urge the Supreme Court to clarify Missouri’s boundaries.  Paul Clement for the petitioner!  Stay tuned!

Print Friendly, PDF & Email
Notify of

But there simply is no 10th Amendment power vis a vis the treaty power because the treaty power has been expressly delegated to the feds (one limit in Amend. X) and has been expressly denied to the States (the next limit in Amend. X). See also Reid v. Covert;
for the analysis and cases.

John C. Dehn


While the Tenth Amendment cannot defeaat the federal government’s power to make a treaty, that does not necessarily mean that Congress may implement that treaty domestically in ways normally reserved to the states.  That is the crux of the issue here (and Missouri v. Holland), particularly so because the implementing statute is arguably broader than is necessary to effectuate the treaty.  Of course, those familiar with chemical weapons would probably explain that what seems like overbreadth isn’t, given the plethora of items that might contribute to the manufacture of a crude chemical weapon that could potentially place the U.S. in violation of the Chemical Weapons Convention.

Thanks Peter!  Interesting case indeed!


“To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.”
Reid v. Covert (U.S. 1957).
Also see the language in several cases on point in addition to Missouri v. Holland (in the click-on).
The power of Congress is in Art. I, Sec. 8, cl. 18 as well as in cl.10 if there are offenses against international law at stake.  Thus, there is no need to address the commerce power or cases limiting congressional power under the commerce power.

Martin Holterman

Indeed. The fact that the Treaty-making power is expressly given to the Federal government alone is key. Given that only the Feds make treaties, they have to have some way of keeping their promises. Since Medellin v. Texas closed the door on everything other than implementing statutes, it’s implementing statutes that’s left. If the states don’t like it, they should muster up 34 senators to vote down the treaty.