Guest Post: Silences in the Bond Case

[Jean Galbraith is an Assistant Professor at Rutgers School of Law – Camden]

Thank you to Opinio Juris for letting me guest blog on Bond.

The most notable thing about the Bond decision is a resounding silence.  As a matter of law, it should have been easy to find for the government.  The statutory text reads plainly in the government’s favor, and constitutional text, practice, and precedent easily support the conclusion that the federal government can override federalism interests in implementing constitutionally valid treaties.  Yet not a single justice sided with the United States.  This silence is particularly perplexing given that three justices at oral argument seemed sympathetic to the government.

That is the major silence, but there are silences of reasoning in the opinions as well.  In what follows, I focus on two silences.  The first is the lack of consideration in the majority opinion of how treaty-implementing statutes might differ as a matter of statutory construction from ordinary statutes.  The second is the startling absence of constitutional history from the Framing onward in Justice Scalia’s concurrence.

The Majority Opinion

As Peter Spiro has noted, the majority ducks the constitutional question of whether the Treaty Power plus the Necessary and Proper Clause authorizes Congress to criminalize domestic poisonings like that of Ms. Bond.  Following a hint dropped by Justice Kennedy at oral argument, the Court does this by holding that there needs to be a “clear statement that Congress meant the statute to reach local criminal conduct.”  It isn’t enough for Congress to use broad language that seems to cover the act at issue; instead, Congress apparently has to do something more to signal specific intent to reach “local” conduct.  Congress didn’t do so here, so Ms. Bond wins.

I won’t deconstruct the merits of this approach, although I think Justice Scalia does a good job in his concurrence of showing why it is problematic.  But I do want to mention that it leads to an interesting divergence between the interpretation of a treaty and the interpretation of implementing legislation.  The Court spent very little time on the interpretation of the Chemical Weapons Convention itself, merely noting its “doubts” that the Convention was meant to reach ordinary domestic poisonings.  If it had wanted to, the Court could doubtless have done more to interpret the Convention this way (e.g., by explicit discussion of “object and purpose” or perhaps by drawing on rule-of-lenity-related principles in international and comparative law).  But instead the Court accepted a wedge between the interpretation of a treaty and of its implementing legislation.  Federalism principles do not matter to treaty interpretation (given that these principles are country-specific) but do matter to the interpretation of implementing legislation.  If this canon of construction is about Congressional intent, then it strikes me as odd, because there is a countervailing consideration not mentioned by the Court. This is that when Congress uses language that closely tracks a treaty’s language in implementing the treaty, Congress presumably does so because it wants convergence rather than divergence with the treaty.

Justice Scalia’s Concurrence

Justice Scalia’s concurrence engages directly with the constitutional question.  He would conclude that the Necessary and Proper Clause does not authorize Congress to pass legislation implementing treaties. His approach embraces wholesale the novel constitutional approach proposed by Nicholas Rosenkranz, which reads the Necessary and Proper Clause as authorizing only legislation related to creation of treaties and not to their implementation.  This approach relies on a strained textual reading of the Necessary and Proper Clause in connection with the Treaty Clause which, as best I can tell, had never been made before Professor Rosenkranz came up with it.

In adopting this approach, Justice Scalia completely ignores key aspects of constitutional history.  As Carlos Vazquez and Ed Swaine have pointed out, the Framers were convinced of the need of the federal government to have the power to implement treaties, following the problems that arose under the Articles of Confederation.  There was little specific consideration of the Necessary and Proper Clause in relation to the Treaty Power during the Framing, but this was because the Supremacy Clause stated that treaties were to have direct effect as the “supreme law of the land.”  It was because the practice of non-self-execution developed through historical practice and case law that Congress’s Necessary and Proper Power in relation to the Treaty Power became important.  Unless one rejects these historical developments in the non-self-execution context (and Justice Scalia is a proponent of non-self-execution), then it is bizarre to reject the resulting historical developments in relation to the Necessary and Proper Clause

As I show in a draft article, and as an amicus brief by Professors Golove, Lederman, and Mikhail similarly demonstrates, the idea that Congress has the power to implement treaties under the Necessary and Proper Clause has deep historical roots.  Starting as early as the debates over the Jay Treaty in the 1790s, members of Congress were drawing this connection, and Congress relied on this power in the extradition and trademark context long before the Supreme Court decisions in Neely v. Henkel and Missouri v. Holland.  In indicating that he would overrule Justice Harlan’s unanimous holding in Neely and Justice Holmes’s holding for the Court in Missouri with respect to the treaty-implementing power, Justice Scalia complained that these holdings lacked citation.  I don’t think he intended irony, but I cannot help seeing it.  For in stretching to hold that the Necessary and Proper Clause does not give Congress the power to implement treaties, Justice Scalia would not only be overturning these cases, but also rejecting an interpretation of the Necessary and Proper Clause that has been ascertained and liquidated through longstanding constitutional practice.  It is no surprise that he only garnered one other vote for this position.

Finally, I am deeply perplexed by Justice Scalia’s celebration of Henry St. George Tucker, the author of a treatise on treaties in the early twentieth century.  Justice Scalia calls Tucker “famous” but he was hardly as important as Crandall or probably Butler.  In any event, does Justice Scalia really want to get his constitutional law from a twentieth century commentator who thought that “the attempt to bring about the right of suffrage for women by an amendment to the Constitution of the United States is opposed to the genius of the instrument itself …”?  Who argued against a broad treaty power in part because it would mean that “the negro from Hayti or the Congo may under a treaty be free to enter the schools of Texas and ride in any coach on a railroad that may suit his tastes, notwithstanding the laws of Texas to the contrary”?  In an opinion full of silences, this inclusion is strange indeed.