Debating the Need to Revisit Missouri v Holland

by Duncan Hollis

I want to briefly interrupt the LJIL symposium to flag the fact that the Bond case is back on the U.S. Supreme Court’s radar screen and with it the prospect that the Court may revisit one of the most canonical cases of U.S. foreign relations law: Missouri v. Holland. The facts are a bit lurid — Carol Anne Bond discovered that her husband had impregnated a close friend, leading her to harass the friend, including the placement of caustic substances on objects the woman touched, which caused her to suffer minor burns.  Bond was indicted for violating 18 U.S.C. §229, which forbids knowing possession or use, for non-peaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans”.  That statute was enacted to implement U.S. obligations under the Chemical Weapons Convention.

The Supremes have already considered Bond’s case once before, ruling in 2011 that the Third Circuit was wrong to deny that Bond had standing to challenge her conviction on 10th Amendment grounds and remanding the case to consider that defense.  As Peter blogged in May, the Third Circuit then upheld her conviction on the grounds that the Treaty Power afforded Congress powers to implement a treaty that it could not exercise on its own under Article I (in other words, the decision basically tracks Missouri‘s holding).  However, both the Majority and one of the concurrences specifically asked the Supreme Court to clarify Missouri‘s boundaries.

Bond has since filed a petition for writ of certiorari. Over the last several weeks, the amicus briefs have begun to arrive.  For example, the Cato Institute filed this brief urging the Court to take the case (counsel includes Nick Rosenkranz who’s spent a lot of time critiquing Holmes’ Missouri decision and/or Louis Henkin’s interpretation of it).  On the other side, Yale Law School’s Center for Global Legal Challenges has this amicus brief urging the Court not to take cert (and includes Oona Hathaway who’s spent a great deal of her time examining the treaty power’s scope from a more nationalist orientation)  The Yale brief cites my own earlier work, which suggested the Court would not re-engage with Missouri and flagged the then-little noticed phenomenon where the Executive had adopted various ways to police its own exercises of the Treaty Power, suggesting a narrower reach for Missouri than its text might suggest.

I don’t know whether my earlier prognosticating that the Court will not re-visit MIssouri still stands (I certainly didn’t envision a chemical weapons prosecution of a jilted wife when I wrote it).  But I do think the Court’s consideration of the cert question should assess all the non-judicial law-making on the treaty power front that occurred both before and after Missouri as well as the implications of that practice to establish alternative avenues to control the scope of the Treaty Power independent of any judicial safeguards of federalism.  I suspect, moreover, we’ll know soon enough if that practice is sufficient to deter (or defer) the Court’s attention from Holmes’ famous opinion.

4 Responses

  1. Thanks for posting this update, Duncan. This case puts me in mind of the line of VCCR cases, Medellin being the most recent, and how all of these cases illustrate the problem that the US federal structure poses for US compliance with much of the corpus of both international human rights law and international criminal law, which require implementation in national law. The basic fact that implementation of IHRL and ICL both involve the necessity of creating and enforcing national criminal law, combined with the other basic fact that under the US federal structure the US government is severely limited in its ability to create and enforce national criminal law, creates this problem. If Missouri v. Holland cannot be relied upon as a principle facilitating the implementation of treaties through federal law, this problem will only get worse. I would personally rather see the US sign fewer treaties, and perhaps withdraw from some it is currently party to, than have the US be party to these treaties but unable to comply with them through national implementation.

  2. Told my ILAW students today that the exam in December will include Missouri v Holland which we covered a couple of weeks ago, but that it may not be the law by the time they start practicing!  Thanks for the update.

  3. I’ve been thinking about this case recently – we went into it in some depth in a Henkinesque seminar in my third year of LS.

    Ideally, part of Senate ratification should be an endorsement that the treaty commitments undertaken are not ultra vires.  The Supremacy Clause requires that overreaching treaty commitments be honored – but perhaps the Court could rule that it doesn’t necessarily follow from this that it enables their creation. 

    As an example, if a spouse who has the general authority to do so writes a check, the check must be honored, even if written against an express understanding within the household.  Power is not necessarily coterminous with right.

    Punting the ambiguity to the treaty partner with a “Federalism” reservation isn’t much of a practical solution.  Neither is an Executive Branch informal undertaking not to overreach.  The political tectonics seem to suggest that change is not a certainty, though.  There’s a potential for a marriage of convenience between those fighting for international social norms and the international security folks.  The former will be defending the gains of the last few decades. And whatever one might think of the latter, it’s hard to be so sanguine these days about the power of ‘invisible radiations.’

  4. Response…
    Recall, bottom line, the Supremacy Clause expressly mandates that “all” treaties are supreme law of the land and binding on the states, etc.  The treaty power was expressly delegated to the feds. and was expessly prohibited to the states in the Const.  Therefore, for two reasons, the 10th Amend. is “no barrier.”  Reid v. Covert (U.S. 1957).  See generally 31 Suffolk Transnat’l L. Rev. 301, 315-26 (2008), available at  Another question arisses: does Cong. have power to implement the “treaty power” or result therefrom, i.e., the treaty — overwhelming number of U.S. cases confirm a resounding yes, esp. in view of U.S. Const. art. I, sec. 8, cl. 18.  Some cases use cl. 18 as well as cl. 3 and cl. 10 with respect to Cong. legislation implementing treaty-based and/or customary international law. See Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 251-71 (3 ed. 2009 — West American Casebook Series) [professors: ask West for a free “desk copy”].

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