Can the Offenses Clause save Missouri v. Holland?

by Duncan Hollis

Things are continuing to gear up here in the United States for the big foreign affairs law case of the year — U.S. v. Bond, which, among other things may allow the U.S. Supreme Court to revisit one of its most significant foreign affairs law cases ever – Missouri v. Holland.  Bond asks two questions: (1) whether the Constitution limits Congress’s authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question — the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the “scope and continuing vitality of . . .  Missouri v. Holland“.  Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.

So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress’ authorities under Article I.  That, after all, was the central holding of Holmes’ opinion in Missouri and it’s the one that most scholars fear — or, hope, depending on their disposition — may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh).  But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause.  The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute.  This is not a surprising argument.  The Commerce Clause’s expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes’ impassioned assertion of a dynamic reading of the treaty power.

Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority — the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser’s Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They’ve now posted a scholarly exposition of their argument on SSRN.  Here’s the abstract:

The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.

The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.

I find myself fairly convinced of the paper’s historical claim — that the reference to the law of nations at the time of the Framing included U.S. treaty obligations.  Thus, I think their argument is one the Court can (and should) consider in the Bond case.  In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition.  Let me highlight three after the jump.

First, I wonder about what the authors mean when they use the term “treaties”.  Historically, just as the law of nations may have been understood to have a different meaning than the one it receives colloquially today (namely as a synonym for customary international law), the treaty concept was invoked differently as well.  Vattel, for example, distinguished among different types of international agreements.  Only certain types of commitments qualified as “treaties”; others got labeled as mere “agreements” or “compacts”, with the distinction turning on whether the commitments were perpetual/dispositive in nature.  My question then is whether at the Framing, references to the law of nations encompassed both treaties and agreements as Vattel explained them, or only the narrower set of perpetual commitments that warranted the treaty label?

Second, I wonder how the Offenses Clause thesis works for Congressional-Executive Agreements?  This was largely a non-issue at the Framing since Senate Advice and Consent (A&C) was nearly the exclusive vehicle for the United States consenting to international obligations (Postal agreements representing a notable exception).  But what happens to the authors’ broad reading of the law of nations as including references to U.S. treaty commitments once the United States begins to conclude so many (if not the majority) of these commitments through congressional-executive agreements?  Does the Offenses Clause allow Congress to authorize a congressional-executive agreement and then bootstrap itself into powers it otherwise wouldn’t have under Article I by defining and punishing offenses in implementation of that agreement?  Or, would the authors say in that situation that the Offenses Clause is limited by the scope of Congress’ other enumerated powers.  But, if that’s their view, why wouldn’t the same logic apply to limiting the scope of congressional legislation in implementation of Senate A&C treaties like the Chemical Weapons Convention?

Third, and finally, I’d offer a cautionary note on the idea of equating treaties with international law, a move the current draft makes with some frequency.  Although the same move is made regularly in practice, I’m not as sure it’s established with respect to those who think about the sources of international law.  Indeed, anyone who writes about sources doctrine almost inevitably has to acknowledge that treaties are unlike the other sources of law (custom, general principles) since they are not “general rules of general application”, but specific “incidences of obligation”.  Just as contracts aren’t “law” but rather “lawful”, the argument can be made that treaties may be binding and enforceable, but that doesn’t mean they are themselves law, a view most famously expressed by Sir Gerald Fitzmaurice in ‘Some Problems Regarding the Formal Sources of International Law’ (1958) Symbolae Verzijl 153.   Now perhaps, the solution is to emphasize the French bifurcation of treaties into (1) traités contrat – involving rights and duties paired reciprocally in a synallagmatic manner, and (2) traités loi, which are deemed “law-making”  because the duties they impose are akin to domestic law rules of general application.  Under this approach, I’d assume the “law of nations” reference would cover traités loi but not traités contrat.  But again, I’m not sure whether Sarah or Bill would welcome that sort of caveat?

In any case, I found Defining and Punishing Offenses Under Treaties a truly provoking and important work of scholarship.  So, whether you’re a fan of Missouri v. Holland or not, this article’s worth a read, and I’d hope it gets one from the Court before they take up Bond later this term.

11 Responses

  1. Yes, it can.  See U.S. v. Haun (Justice Campbell, on circuit) (1814 treaty and 1818 & 1820 Acts of Congress — int’l law can enhance congressional powers, yes, under Art. I, sec. 8, cls. 3, 10, and 18); U.S. v. Arjona (CIL and Act of Congress, using Const. Art. I, sec. 8, cls. 3, 10, and 18); Missouri v. Holland (treaty and Act of Cong., using Art. I, sec. 8, cl. 18 and the fact that the 10th Amend. is no barrier — as noted also in Asakura v. City of Seattle (1924), Reid v. Covert (1957), and lower fed. cts., e.g., Baker v. City of Portland (1879), Hamilton v. Eaton (1792), In re Parrott (1880)).
    Of course, there is no competing 10th Amend. power of a state in any event, since, per terms of the 10th Amend. and Art. I, sec. 10 and Art. III and Art. VI, cl. 2 (“all” treaties), the treaty power (1) has been expressly delegated to the feds. and (2) has been expressly denied to the states — as well recognized by the Supreme Court and other courts for a very long time with respect to a large number of matters that might otherwise have been the prerogative of the state.  See, e.g., and
    Bond v. United States and Treaty Bonds

  2. Duncan, related to your first point and the historical claim in the article (which I haven’t read yet), I wonder why the First Judiciary Act vested jurisdiction “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” (emphasis added) Was Congress being redundant or did they perceive a difference between treaties and the law of nations?  Their use of the conjunctive “or” indicates the latter.  If the latter, does that undermine the proffered interpretation of the Offenses Clause given the temporal proximity of the Act to the Constitution’s framing?  This is only one data point, of course, but it seems to be an important one.

  3. John — see pp. 25-26 of their paper.  I think their answer would be twofold. First, the Judiciary Act actually rests on the Offenses Clauses for support with respect to the law of nations AND treaties.  Second, the Act implemented the earlier 1781 Resolution of Congress, which expressly said treaty infractions were violations of the law of nations. Then again, though, I’m happy to let Bill or Sarah weigh in since it’s their argument to make sure I’m not missing anything.  

  4. Thanks, Duncan.  I’ll give that section and the whole article a close read.  I tend to believe that, as to treaties, the Act rests on Article VI and Article III arising under jurisdiction.    
    I certainly agree that a treaty infraction violated the law of nations, but isn’t that different from elevating a substantive provision of a treaty to law of nations status?  My take on the Offenses Clause is that its use of “offenses against” implicates the underlying moral component of the law of nations, justifying the “punishment” of violations.  The moral component of a treaty violation rests in the violation of a pledge, not necessarily in the substance of the treaty violated.  This is unless, of course, the treaty provision violated is a codification of the law of nations.  In that case punishment of the violation would be justified, but by virtue of its status as a component of the law of nations rather than its status as a treaty provision.  
    The breadth of this claim is potentially enormous.  Did the Offenses Clause give Congress the power to punish any act that might be a violation of a treaty of friendship, commerce and navigation? 

  5. Ok, so they addressed my specific ATS thought on page 10.  They also sensed the over-breadth of the assertion that all treaty violations could be punished and limit their thesis by saying that the substance of the conduct being punished “must itself be condemned in some manner under international law.”  Hmmm…I’ll keep reading.  This seems to square with my belief that there must be a moral component to the violation for it to fall within the Offenses Clause.  But my sense is that most “offenses against the law of nations” of the founding era were violations of what Vattel termed voluntary law, not treaty or custom. 

  6. I concur with John.   Is there any evidence that the Founders intended to adopt “customary international law,” as you suggest?

  7. John: the 1794 Neutrality Act would cover a breach of neutrality related to a violation of an FCN treaty.  The Act was created with the breaches of neutrality prosecuted in Henfield’s Case in 1793 (which really involved two charges to the grand juries in Phila. and Richmond).
    Thomas: with respect to Founder and Framer expectations regarding the customary law of nations, what was termed around 1813 as customary international law, see, e.g., In Their Own Words: Affirmations of the Founders, Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations, 14 U.C. Davis J. Int’l L. & Pol’y 205-254 (2008), available at

  8. True enough, Jordan, but your observation rather makes my point.  The basic thesis, that a treaty becomes part of the law of nations infractions of which are subject to punishment under the Offenses Clause, without the limitation later provided by the authors, would allow Congress to punish far too may things that might constitute an infraction of a treaty of friendship, navigation and commerce.  The Neutrality Act did not depend upon the existence of such a treaty of for its applicability because it implemented accepted, generally applicable (and morally infused) rules and principles of the (voluntary) law of nations.  Put differently, to the extent that a violation of the Neutrality Act would violate such a treaty, it would also violate the law of nations that existed independently from, but which were also reflected in, such a treaty.

  9. Of course the law of nations includes treaties (i.e., the conventional law of nations)!  It also includes the voluntary law of nations (i.e., general principles of law recognized by civilized nations) and the necessary law of nations (i.e., natural law), as evidenced by the numerous federal admiralty opinions requiring the application of these other sources of international law when they are binding on parties.  See, e.g., The Antelope, 23 U.S. 66 (1825)  (discussing the internationally legally binding nature of custom, general principles and natural law).
    Furthermore, the Constitution does not make a difference between traites contrat and traites loi.  The Supremacy Clause makes all treaties (receiving Senate consent and Presidential ratification) law.  However, sponsions (which includes non-ratified treaties, executive agreements, and interstate and foreign compacts) are not part of the conventional law of nations that constitutes U.S. treaties because they have not received Senate consent and Presidential ratification.  See Martin, The Constitution as Treaty 156-60 (Cambridge Univ. Press 2007).
    Finally, regarding the ATS’ apparent bifurcation of the law of nations and U.S. treaties, Congress appears to have bifurcated the two law of nations sources to allow a choice of law in cases where the alien plaintiff and defendant are nationals belonging to the same state party to a foreign treaty that conflicts with a U.S. treaty or are nationals belonging to different states-parties to a foreign treaty that is subject to different interpretations by these states-parties.  Congress appeared to have included the disjunctive connective “or” to allow an alien plaintiff to sue for a tort committed in violation of a U.S. treaty alone – notwithstanding the existence of an applicable foreign treaty (which also is part of the law of nations).  The inclusion of the disjunctive connective serves to ensure that a U.S. federal court is not placed in either the dilemma of deciding whether a U.S. or foreign treaty controls the outcome or the dilemma of deciding which state interpretation of the foreign treaty controls the outcome.  And, in the case where there is a U.S. treaty that also governs the relations between an alien plaintiff and alien defendant, a U.S. federal court can rely solely on the U.S. treaty for deciding the case and can avoid giving what otherwise could appear to be preferential treatment of one state-party over another in arguable violation of the principle of state co-equality.  See supra Martin at 161 n.53.  Unlike federal courts sitting in admiralty whose decisions are binding “against the whole world,” federal courts hearing ATS cases in non-admiralty cases could run into these dilemmas if not for the choice of law provision in the ATS.  In fact, the ATS appears to have been the “land law” analogue to the admiralty jurisdiction provision in the Judiciary Act of 1789.

  10. Thanks Jordan.   I am trying to catch up with the post-Erie debate and others, like

  11. And Thomas, please note that Erie had absolutely nothing to do with international law despite what some radical revisionists pretend.  Filartiga contains a good response to a defense claim that CIL cannot be used when there is no implementing legislation, citing several S.Ct. cases re: the fact that CIL is directly incorpporable as part of the laws of the United States.
    As the UC Davis J. article documents, CIL is also binding on the states.

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