The Supreme Court Misses an Opportunity to Place Constitutional Limits on the Treaty Power in Bond v. United States

by Julian Ku

My co-author John Yoo and I have a piece up on Forbes today arguing that the U.S. Supreme Court missed a grand opportunity in Bond v. U.S. to place constitutional limits on the treaty power.  We take aim at Missouri v. Holland head-on.  We criticize the interpretation of the Chemical Weapons Convention Implementation Act adopted by the opinion for the Court of Chief Justice Roberts and argue this decision has echoes of his opinion in Sebelius on the Affordable Care Act. Here is an excerpt:

Holmes was wrong in 1920, however, and the Obama administration is wrong today. The Founders’ original understanding supports a federalism limitation on the treaty power, and this is especially compelling in light of today’s far-reaching and ambitious modern treaties. Unfortunately, the Court’s opinion refused to directly reject Missouri’s mistaken approach.

5 Responses

  1. Julian, the most salient argument in favor of Missouri for me is the fact that the states retained no treaty power for themselves. Under your view, there is literally no entity that could sign a treaty prohibiting the killing of migratory birds–that power literally disappeared when the Constitution was signed. The more common sense approach to me is that if the states did not retain the power to sign such treaties themselves, they ceded it to the federal government.

    Perhaps the response is that international law did not treat such issues in the eighteenth century. But now it does, and we must answer the question of who has the power to sign treaties like migratory birds conventions. In my view, either that power was ceded to the federal government, or it was retained by the states. In other words, I could imagine and respect (although not agree with) the argument that international law did not treat migratory bird conventions in the eighteenth century, so the ceding of the states’ inherent treaty power to the federal government did not include treaties on such issues–and therefore the states retain this power and can conclude international treaties on this issue in their own right. But I have difficulty accepting the argument that this power simply disappeared in 1789 (at a time where the power to conclude such treaties was not even contemplated), being both given up by the states and not received by the federal government.

    I’d appreciate your thoughts.

  2. Julian: actually you and John are both wrong!
    and the 10th Amend. is part of the reason: two reasons why the states have no 10th Amend. powers vis a vis the treaty power.

  3. “The rise of new and ambitious treaties regulating domestic affairs will sometimes pose a difficult challenge for the U.S. constitutional system. Many supporters of these new agreements will invoke the need to carry out international commitments as an excuse to ignore the U.S. Constitution’s protections for the states and, ultimately, American sovereignty.”

    Madison’s focus was not on the protection of the states but as the federal and state governments as tools to protect the rights of the people. So this federalism worry is, in my view, turning things upside down. If the human rights of the people are not protected through this solicitude for the states, THAT is a problem. Even the founders thought we had rights not derived from the sovereign(s). The structure, if it worked the way they hoped, would protect the rights of the people. For long periods as we all know, it has not.

  4. Blacksher, James Uriah and Guinier, Lani, Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder (February 23, 2014). Harvard Law and Policy Review, Vol 8, 2014, Forthcoming. Available at SSRN: or

    You might look at these sinister ante-bellum bases for your federalism as an apologia for oppression not freedom.

  5. And sovereignty and ultimate authority remained in the people (actually another recognition in part in the 10th Amend.) and the govts. had only representative authority or delegated powers. Human rights were to be protected through the Ninth Amendment. I could give you a SSRN cite to my 1970s article on Human Rights and the Ninth Amendment, Cornell L. Rev., but you can find it on SSRN.

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