Bond Cheat Sheet

by Peter Spiro

As David Kaye notes, treaty-power advocates everywhere may be breathing a collective sigh of relief with the Supreme Court’s decision in Bond v. United States. I’m not so sure how big a difference it makes, given the Senate’s persistent refusal to put an expansive treaty power to work. From an academic perspective the decision is a big let-down. No big pronouncements on Missouri v. Holland, the treaty power, the future of federalism in a different world.

On the substance, we have Jean’s excellent post below as well as Curtis Bradley’s characteristically precise analysis on AJIL Unbound. As Curt points out, the straight-up application of the federalism clear-statement rule in the foreign affairs context is significant. Perhaps a little tension with Charming Betsy? But this is incremental stuff, not the kind of ruling that marks a major pivot on the Court’s part in foreign relations law. The money quotes in the majority opinion relate to domestic affairs of a decidedly mundane kind, as Roberts decries an application of the treaty that “would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room.”

The Court may have understood this to be too freaky a case on which to peg a major ruling (hence also the silence from the Left side of the Court). The parade of horribles may be theoretically long and broad when it comes to imagining the ways that treaties might subsume core state authorities. But when it comes to making that specter a little more concrete, Justice Scalia is left conjuring up a multilateral “Antipolygamy Convention” with which Congress then trumps state intestacy laws. Really? (Scalia is known to write his concurrences and dissents from scratch. That was once a good thing; now it may be a bad. His concurrence here has a sloppy feel to it.)

For his part, Justice Thomas walks us through the original understanding of the Treaty Power in calling for its limitation to international relations. With due respect to the many rigorous scholars of an originalist orientation, I must admit that I have less patience for this oracular stuff the older I get. It never coughs up determinate answers. (How could it, in this context perhaps more than any other.) In what should be a candidate for SCOTUS understatement of the year, Thomas concludes: “I acknowledge that the distinction between matters of international intercourse and matters of purely domestic regulation may not be obvious in all cases.”

As foreign affairs law becomes increasingly doctrinalized, with a slew of major cases over the last 15 years, this is one area that will now remain up for grabs (the persistence of the century-old Holland decision notwithstanding). Maybe that’s not a bad thing for methodological and pedagogical purposes. As the Court plays the Marbury card more frequently (Scalia does it here), a last-word mirage rises in which the Court seems to be calling all the shots. But the new global architecture is far too immense and intricate for the Court to stay on top of it. Better to stay attuned to non-judicial mechanisms of constitutional evolution.

6 Responses

  1. Great analysis. I must disagree with Curtis on one point, however. If the Constitution requires a “clear statement” to abridge States’ rights, that requirement must also apply to ambiguous treaties, shouldn’t it? After all, the Executive’s power is no broader.

  2. I would wonder why this would be so.  If the legislation is pursuant to the Treaty Power it seems awfully parochial to have a “clear statement” rule derived from structural concerns, rather than acknowledge that the treaty making power is in the federal government and binds the United States as a whole.  After all, the states gave the treaty making power over to the Federal Government when ratifying or acceding to the Constitution.

  3. Federal postal employees were potentially endangered. Wasn’t this really an indirect review if prosecutorial discretion?

  4. Thomas Welch – good point.  There seems to be pretty short shrift for the federal postal workers coming across these chemicals on the mailboxes I believe some 24 times.  Maybe that was a problem of argument – but a very good point you make.

  5. Isn’t all this an absurd reaction to a slightly singed thumb? A common assault at the most.

    Even administering a noxious substance surely would have been over the top. Has anyone assessed the costs so far? Will the attorneys pay? [silly question]

  6. An afterthought:
    Was it ‘battery’ acid?

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