Bond v. United States and the Non-Use of the Treaty Power

by Peter Spiro

Has the federal government ever put Missouri v. Holland to work? I don’t think so, though I always hesitate to state it categorically. The Supreme Court’s 1920 decision in Holland squarely held that the Treaty Power adds something to other enumerated federal authorities. But there appears to be no instance in which the federal government has actually used a treaty to do something that it couldn’t do under some other power, other than in the (putative) controversy implicated by Bond itself. (The Supreme Court hears arguments in Bond tomorrow.)

I thought for a moment I was nailed on this point reading through the amicus brief submitted by John Bellinger and other former State Department Legal Advisers. The brief highlights the Controlled Substances Act and its status as implementing legislation for the 1961 Single Convention on Narcotic Drugs. (Well, that would be a big one!) The Act does put the treaty to work in interesting ways, including as a kind of international delegation under which domestic procedures for drug classification can be ignored if a drug becomes controlled under an international agreement. See 21 U.S.C. 811(d). Very interesting, but somewhat beside the point. As the Supreme Court recently held in Raich, Congress has the power to regulate controlled substances under the Commerce Clause.

The same goes for other agreements discussed in the Legal Advisers’ brief, including agreements relating to environmental protection, diplomatic immunity, and international driver’s licenses. In other words, the U.S. could enter into those agreements — and implement them — even if Missouri v. Holland were overruled.

The non-practice under Holland cuts both ways. As those supporting the government point out, it shows that political process works to protect state interests. The Treaty Power as interpreted by Justice Holmes looks pretty scary in theory, from a states rights perspective, to the extent it could swallow up all constraints on federal power. But in practice it’s been toothless.

On the other hand, complete non-use by the political branches might evidence that Missouri v. Holland doesn’t reflect constitutional norms on the question, that the Treaty Power has fallen into a kind of constitutional desuetude. In other words, Missouri v. Holland may have been overruled by nearly a century’s worth of subsequent contrary practice.

Either way, the lack of any real practice (and the anomalous circumstances of Bond itself) cautions against a merits ruling on the Treaty Power issue, in the spirit of judicial minimalism and constitutional avoidance. Who knows, there may come a time when the political branches are interested in intentionally asserting a more robust Treaty Power. That world would almost surely be a different one than we find ourselves in today (different enough to overcome the longstanding refusal to use the Treaty Power to expand federal authorities). Better to wait to see what that world looks like before deciding so important a question.

http://opiniojuris.org/2013/11/04/bond-v-united-states-federal-government-ever-made-use-missouri-v-holland/

8 Responses

  1. Peter — I think there’s a case to be made that the 2007 U.S. implementing legislation under the 2000 US-Russia Polar Bears Agreement implicates Missouri since (among other things) it involves regulating subsistence take of polar bears by the indigenous populations, which seems pretty hard to fit under commerce in any sense of that term.  

  2. With respect to international crimes, congressional implementing legislation abounds.  With respect to civil sanctions, the TVPA and ATA can recognizably be supported in part by treaty law of the U.S.  Given the two express exclusoins of state power in the 10th Amendment with respect to powers delegated to the federal govt. and powers excluded to the states, there is no “states right” with respect to the treaty power!

  3. Duncan, ah, yes, the Polar Bears Agreement. I think that would enjoy authority under Congress’s power to regulate Native Americans, wouldn’t it? It might also enjoy Commerce Clause support insofar as the polar bears cross national boundaries. There was no discussion of any constitutional issues in the enactment of implementing legislation (much less any deployment of Missouri v. Holland).

    But even if the Polar Bears Agreement would have no grounding in some non-treaty power, it almost proves the point. If that’s the only instance in which Congress has deployed Missouri v. Holland, then it hasn’t amounted to much.

  4.  

    >>Why didn’t State and/or Justice make this case go away? Why fight so significant a battle on such insignificant terrain? It’s not as if the government is pressing and protecting a clear policy agenda here. 
    My theory is that this may be more of the famous Obama administration jiujitsu. The administration might have decided to pursue this case because it wants to lose: If the Court overturns Missouri, then the administration can use the decision to sway senators. See?, the administration will say, now you have no reasonable ground to oppose UNCLOS or the Disability Convention. 
    Because as you pointed out earlier, there isn’t really any time when the treaty power needs to trump the Tenth Amendment. The administration (and the country) don’t really lose anything by having the Supreme Court adopt an autonomist view. And the potential benefits are that recalcitrant Senators could decide that allowing the Senate to ratify uncontroversial treaties might not be the end of the world after all.

     

  5. Bellinger is wrong (again).  The Supremacy Clause says nothing about enforcement.   Pennsylvania is larger than most of the CWC (and BWC) contracting States, and is perfectly capable of deciding whether Ms. Bond’s use of chemicals was “mass” in nature.   If PA won’t enforce this critical treaty (when appropriate), than no one else will either, and it should be abandoned.   Non- enforcement of the CWC (and BWC) is not comparable to  Polar Bears.

  6. While federal enforcement may be “proper,” It is not “necessary.

  7. Response… As the term is used in McCulloch v. Maryland, it is hard to undersand how the enforcement is not ‘necessary.’

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