Supreme Court Ducks Broad Treaty Power Ruling in Bond v. United States

by Peter Spiro

The decision is here. The Court found unanimously that the federal government overreached in prosecuting Carol Anne Bond under a federal statute implementing the Chemical Weapons Convention for what was otherwise a simple assault in a lovers’ quarrel. The six-justice majority decided the case on non-constitutional, statutory grounds — interpreting the statute (and the treaty) not to cover such conduct, but not addressing broader questions relating to the scope of the federal power to invade otherwise exclusive state authorities through the vehicle of international agreements.

So Missouri v. Holland stands. And it’s likely to stand for the foreseeable future. This was a freak case, a rare application of the treaty power cleanly posing the federalism question. Congress isn’t exactly free and loose in making use of its putatively limitless authority under the Holland opinion.

For those favoring national powers, this is probably the best that could have been hoped for. The Roberts Court has been ratcheting back the foreign affairs power on other fronts, and there was a wide expectation that this case would supply another important episode in advancing that agenda. The ruling is consistent with that agenda insofar as the Chief Justice’s opinion here treats the statute as it would any other. It’s not given a more expansive reading because it involves a treaty or foreign affairs. In that respect, Bond reflects the normalization of foreign relations law. But only in a small-ball kind of way. Constitutionally limiting (or affirming) the treaty power would have been much, much more significant.

We should have more soon on the ruling, the concurrences, and the future of the treaty power during the course of the week here at OJ.

10 Responses

  1. Peter: did you use the word “ducks” re: ducks the ducks case?
    In any event, the statutory interpretation issue may bring up the question of unrestrained Justices who impose their views instead of fairly interpreting the words of a statute enacted by the political branches.
    Charming Betsy requires that federal statutes be interpreted consistently with international law, but what would that mean in this case?

  2. Here is a post up at I did on the case –

  3. Good “plain statement” Ben, and right on, especially because the states have absolutely no 10th Amend. powers vis a vis the treaty power for two reasons expressed in the 10th Amend. and because numerous federal and court decisions have upheld the reach of treaty law to matters that previously had been the prerogative of the state.

  4. Thanks brother and I agree wholeheartedly with you on this structural federalism nonsense.

  5. Actually, the Court didn’t interpret the treaty, just the implementing legislation:

    “Fortunately, we have no need to interpret the scope of the Convention in this case. Bond was prosecuted under section 229, and the statute—unlike the Convention— must be read consistent with principles of federalism inherent in our constitutional structure.”

    (Slip op, p. 10)

  6. As a matter of internal law the effect is to narrow the effect of the obligation through this sleight of hand. That is the step back from Missouri v Holland.

  7. Response…the scope of the federal power to invade otherwise exclusive state authorities through the vehicle of international agreements.

    The Supreme Court has long-since rejected the idea that the Congress can use the Paris or Berne Conventions, federal enabling legislation, and the Treaty and Copyright clauses of the Constitution to violate the “residual sovereignty”, and resulting sovereign immunity of the states, from copyright and patent lawsuits filed in the federal courts. If you can rationalize that outcome, then the Bond case shouldn’t disturb or surprise you too much.

  8. So the rest of the educated world now knows that the U.S. Can use the gaping hole of “…“in ac-cordance with its constitutional processes.” Art. VII(1), 1974 U. N. T. S. 331, but continue its defensive research on neurotoxins and other pathogens? See, e.g.,

  9. “principles of federalism” that are “inherent”? what principles of federalism could possibly survive the exclusion of state powers vis a vis treaties in view of the two express exclusions of powers expressly set forth in the 10th Amendment?
    Hostage: someone “lost” the patent cases? Prior to Missouri v. Holland? Was there immunity under the 11th Amend.?

  10. Response…Hostage: someone “lost” the patent cases? Prior to Missouri v. Holland? Was there immunity under the 11th Amend.?

    The first copyright case dismissed on grounds of state sovereign immunity was Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962), long after Missouri v. Holland. Subsequently, the Congress adopted the Berne Convention Implementation Act of 1988; the Copyright Remedy Clarification Act; the Trademark Remedy Clarification Act; and the Patent and Plant Variety Remedy Clarification Act with the explicit intent to settle the issue of state liability for infringement of intellectual property rights.

    My understanding is that the Supreme Court holds that the 11th Amendment simply reflects the residual sovereign immunity of the states, but is not the actual source of that immunity. In a number of non-intellectual property cases, including Alden and Seminole Tribe, the Court held that Article I of the U.S. Constitution does not give the United States Congress the power to abrogate the sovereign immunity of the states. In the Florida Prepaid and College Savings Bank cases the Court applied the same logic to liability for infringement of trademarks and patents. The Circuit Courts applied the Supreme Court’s rulings to copyrights in cases like Chavez v. Arte Publico Press.

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