Guest Post: Self-Executing Treaties, Criminal Law, and Bond v. United States

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He and Professor Sarah H. Cleveland filed an amicus brief in Bond v. United States arguing that the Offenses Clause provides an additional basis for upholding the constitutionality of the Chemical Weapons Convention Implementation Act.]

The difference between signature and ratification was not the only point of misunderstanding about treaties at the oral argument in Bond v. United States. Both counsel for the petitioner Paul Clement and some of the Justices also seemed confused about self-executing and non-self-executing treaties. Under U.S. law, the Chemical Weapons Convention (CWC) is a non-self-executing treaty. Article VII(1) provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention” and, in particular, shall “prohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Justice Kagan asked if the treaty could have been self-executing, a possibility Mr. Clement seemed willing to entertain (transcript p. 7). Justice Scalia seemed to think that self-executing treaty would be better because it would require implementation by the states of the United States (transcript p. 33), though he was mistaken because a self-executing treaty binds the judges of every state under the Constitution’s Supremacy Clause. Justice Breyer seemed to think that a self-executing treaty would be worse because it would cut out the House of Representatives (transcript p. 48). And Solicitor General Verrilli made the point that if “a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty . . . that has . . . the additional structural protection of the passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do” (transcript pp. 32-33). Verrilli’s point echoes one that has been made by Rick Pildes, among others, in response to Nick Rosencranz’s reading of the Treaty Power.

The problem with all of this is that it makes little sense in the context of a criminal case like Bond. (more…)

All You Ever Wanted to Know About the Treaty Power and Federalism, But Were Afraid to Ask*

by Julian Ku

I am remiss in not linking earlier to this excellent and absorbing discussion of the upcoming US Supreme Court decision in Bond v. United States at the Volokh Conspiracy.  Rick Pildes at NYU is doing a nice job, but he is single-handedly taking on Professors Nick Rosenkranz, Ilya Somin, and Eugene Kontorovich on various aspects of the treaty power and its limitations under the U.S. Constitution.  So Professor Pildes is a little outgunned, although he is doing a nice job nonetheless.

My own two cents so far:  I find the textual argument for a limited treaty-execution power fairly compelling, especially under the Necessary and Proper Clause.  I also agree that the Bill of Rights limitation on the treaty power, inferred from the Supreme Court’s plurality decision in Reid v. Covert, is not a particularly powerful precedent in favor of the Missouri v. Holland result.  If anything, the Reid v. Covert conclusion that treaties cannot violate the Bill of Rights should limit the impact of the earlier Missouri decision, which may not have agreed with Reid.

But Professor Pildes certainly has a powerful argument on this front (at least to me): If a self-executing treaty can exceed Congress’ Article I powers, than why not a statute implementing that same treaty?  What is the structural logic of this result?

For this reason, I associate myself with Professor Curtis Bradley’s view that it makes sense to read a federalism limitation on the self-executing effects of a treaty as well. That question was the subject of Missouri’s main holding, and that holding is also troubling and suspect. I understand that the arguments for limiting the implementation power are stronger, at least textually, but that doesn’t mean there aren’t good structural arguments for limiting the self-executing effects of treaties as well.

Will Bond v. United States Matter?

by Julian Ku

Bond v. United States is one of those cases that promises both more and less than it seems.

At first glance, it seems an important and fascinating case because it is the first time the U.S. Supreme Court will revisit any aspect of the famous 1920 Oliver Wendell Holmes Jr.’s decision in Missouri v. Holland.  That decision, arguably the most famous decision in the U.S. foreign affairs law canon, held that the treaty power was not constrained by the state’s rights limitations in the Tenth Amendment of the U.S. Constitution.  It also held that Congress’ power to implement treaties through normal legislation is similarly unconstrained.

By agreeing to decide Bond, the Supreme Court may reconsider the second (and less famous) of those two holdings.  That second holding, on the much understudied “treaty implementation” power, was challenged in a 2005 Harvard Law Review article by Georgetown Professor Nicholas Rosencranz. (BTW, large congratulations should go to Nick for almost single-handedly creating, or at least reviving, this argument.)

As a matter of high constitutional principle about the nature of the U.S. Constitution’s grant of enumerated powers, this could be a huge case.  But there are reasons to doubt the practical importance of any decision by the Court to revisit Missouri v. Holland in the context of Bond.  Why?  Because the central holding of Missouri v. Holland was that treaties are not constrained by the Tenth Amendment.  Even if the Court holds that Congress cannot use a treaty to exceed its Article I powers, the President and Senate could still simply use a self-executing treaty to implement the same obligations (as Prof. Rick Pildes argues here).

Having said all that, a favorable decision for the petitioners in Bond could still have a practical impact by reviving that almost extinct constitutional creature: the self-executing treaty.  The President and Senate, at least in the past few decades, have very rarely approved self-executing treaties outside of a few subject matter areas (like taxes, extradition, and investment).  Big important treaties, such as human rights treaties, have generally been approved on the condition they are non-self-executing. (Go ahead, name the most important self-executing treaty of the past thirty years. That Tax Convention with Chile?)  Or they are approved like most trade agreements via the route of the congressional-executive agreement.

So Bond might actually result in giving the President and the Senate the incentive to go the “self-execution” route.  As a matter of politics, this might be difficult in today’s Senate, but I think future treaty supporters might not think it would be safer to go the self-execution route to avoid future Bond-like challenges to their treaties.

Supreme Court decides to revisit Missouri v. Holland after all!

by Duncan Hollis

Just a quick entry (it’s late here in Tokyo) to note that the Supreme Court is going to hear the case of U.S. v. Bond, which, in effect, revisits the question of Missouri v. Holland and the scope of Congress’s power to implement U.S. treaty obligations.  Over at Volokh this past week, Nick Rosenkranz and Rick Pildes have been debating that constitutional question in some detail (see here for links to all their posts in one place).  I’ll have more to blog on this later, but for now, my plea is an editorial one.  I think Holmes’ opinion in Missouri is one of the most well-written in the pantheon of the Court’s great cases.  So, if the Court’s going to mess with it — and as I’ve said before I don’t think they should — I’d hope that the current Court can adjust Missouri with something of equal eloquence.

Hat-tip — SCOTUS blog