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.

Guest Post: Silences in the Bond Case

by Jean Galbraith

[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

(more…)

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.

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…)

Bond v. United States and the Non-Use of the Treaty Power

by Peter Spiro

Has the federal government ever put Missouri v. Holland to work? I don’t think so, though I always hesitate to state it categorically. The Supreme Court’s 1920 decision in Holland squarely held that the Treaty Power adds something to other enumerated federal authorities. But there appears to be no instance in which the federal government has actually used a treaty to do something that it couldn’t do under some other power, other than in the (putative) controversy implicated by Bond itself. (The Supreme Court hears arguments in Bond tomorrow.)

I thought for a moment I was nailed on this point reading through the amicus brief submitted by John Bellinger and other former State Department Legal Advisers. The brief highlights the Controlled Substances Act and its status as implementing legislation for the 1961 Single Convention on Narcotic Drugs. (Well, that would be a big one!) The Act does put the treaty to work in interesting ways, including as a kind of international delegation under which domestic procedures for drug classification can be ignored if a drug becomes controlled under an international agreement. See 21 U.S.C. 811(d). Very interesting, but somewhat beside the point. As the Supreme Court recently held in Raich, Congress has the power to regulate controlled substances under the Commerce Clause.

The same goes for other agreements discussed in the Legal Advisers’ brief, including agreements relating to environmental protection, diplomatic immunity, and international driver’s licenses. In other words, the U.S. could enter into those agreements — and implement them — even if Missouri v. Holland were overruled.

The non-practice under Holland cuts both ways. As those supporting the government point out, it shows that political process works to protect state interests. The Treaty Power as interpreted by Justice Holmes looks pretty scary in theory, from a states rights perspective, to the extent it could swallow up all constraints on federal power. But in practice it’s been toothless.

On the other hand, complete non-use by the political branches might evidence that Missouri v. Holland doesn’t reflect constitutional norms on the question, that the Treaty Power has fallen into a kind of constitutional desuetude. In other words, Missouri v. Holland may have been overruled by nearly a century’s worth of subsequent contrary practice.

Either way, the lack of any real practice (and the anomalous circumstances of Bond itself) cautions against a merits ruling on the Treaty Power issue, in the spirit of judicial minimalism and constitutional avoidance. Who knows, there may come a time when the political branches are interested in intentionally asserting a more robust Treaty Power. That world would almost surely be a different one than we find ourselves in today (different enough to overcome the longstanding refusal to use the Treaty Power to expand federal authorities). Better to wait to see what that world looks like before deciding so important a question.

The Improbable Bond v. United States

by Peter Spiro

As foreign relations law wonks gear up for next Tuesday’s argument in Bond v. United States, I wanted to ask, how did we end up with this case, anyway? The small-time, slightly sordid facts are (for classroom purposes) a lawprof’s dream. For those of you who haven’t been following along, the case involves a love triangle in which a wife attacks her husband’s lover, now pregnant with his child. Instead of attacking with a tennis racket or small appliance or some kitchen crockery, she more imaginatively sprinkles toxic chemicals on the woman’s car door, doorknob, and mailbox (the backstory is nicely recounted here).

Instead of pursuing the case under state assault and/or harassment laws, the government prosecuted Bond under 18 U.S.C. 229(a)(1), which criminalizes the use of chemical weapons and was enacted pursuant to the Chemical Weapons Convention.

My question: how did the government decide to pursue the case under the CWC? A case that would otherwise have sleepily played out in a local DA’s office may have come to federal attention through postal inspectors. After that, was it some enterprising young prosecutor who couldn’t seem to shoehorn the case to fit any other federal crime? One can almost imagine an a-ha moment for some newly-minted, hard-working AUSA, late night, deep into the books — “we can nail her for chemical weapons!”

Can we just admit, then, that this is a freak case? The background doesn’t affect the affect the legal analysis but it sure will affect the atmospherics. One can hardly imagine a worse case from the government’s perspective for defending an expansive Treaty Power. I wonder if that AUSA got kudos for creativity. Why didn’t State and/or Justice make this case go away? Why fight so significant a battle on such insignificant terrain? It’s not as if the government is pressing and protecting a clear policy agenda here. Our CWC treaty partners would hardly be offended if Carol Anne Bond were sprung.

Given that the federal government has made very, very little use of the Treaty Power (possibly never) to enlarge its constitutional authority, maybe it would serve everyone better if the Court dodged the broad issue and ruled on a narrow one. The case could be dispatched on narrow statutory interpretation grounds: the provision should not be read to cover the conduct involved. But maybe that’s more than we can hope for from this Court, which looks increasingly intent on asserting itself in the realm of foreign affairs. 

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