Debating the Need to Revisit Missouri v Holland
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.