Can the Offenses Clause save Missouri v. Holland?

Things are continuing to gear up here in the United States for the big foreign affairs law case of the year — U.S. v. Bond, which, among other things may allow the U.S. Supreme Court to revisit one of its most significant foreign affairs law cases ever – Missouri v. Holland.  Bond asks two questions: (1) whether the Constitution limits Congress’s authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question — the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the “scope and continuing vitality of . . .  Missouri v. Holland“.  Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.

So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress’ authorities under Article I.  That, after all, was the central holding of Holmes’ opinion in Missouri and it’s the one that most scholars fear — or, hope, depending on their disposition — may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh).  But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause.  The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute.  This is not a surprising argument.  The Commerce Clause’s expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes’ impassioned assertion of a dynamic reading of the treaty power.

Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority — the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser’s Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They’ve now posted a scholarly exposition of their argument on SSRN.  Here’s the abstract:

The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.

The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.

I find myself fairly convinced of the paper’s historical claim — that the reference to the law of nations at the time of the Framing included U.S. treaty obligations.  Thus, I think their argument is one the Court can (and should) consider in the Bond case.  In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition.  Let me highlight three after the jump.

First, I wonder about what the authors mean when they use the term “treaties”.  Historically, just as the law of nations may have been understood to have a different meaning than the one it receives colloquially today (namely as a synonym for customary international law), the treaty concept was invoked differently as well.  Vattel, for example, distinguished among different types of international agreements.  Only certain types of commitments qualified as “treaties”; others got labeled as mere “agreements” or “compacts”, with the distinction turning on whether the commitments were perpetual/dispositive in nature.  My question then is whether at the Framing, references to the law of nations encompassed both treaties and agreements as Vattel explained them, or only the narrower set of perpetual commitments that warranted the treaty label?

Second, I wonder how the Offenses Clause thesis works for Congressional-Executive Agreements?  This was largely a non-issue at the Framing since Senate Advice and Consent (A&C) was nearly the exclusive vehicle for the United States consenting to international obligations (Postal agreements representing a notable exception).  But what happens to the authors’ broad reading of the law of nations as including references to U.S. treaty commitments once the United States begins to conclude so many (if not the majority) of these commitments through congressional-executive agreements?  Does the Offenses Clause allow Congress to authorize a congressional-executive agreement and then bootstrap itself into powers it otherwise wouldn’t have under Article I by defining and punishing offenses in implementation of that agreement?  Or, would the authors say in that situation that the Offenses Clause is limited by the scope of Congress’ other enumerated powers.  But, if that’s their view, why wouldn’t the same logic apply to limiting the scope of congressional legislation in implementation of Senate A&C treaties like the Chemical Weapons Convention?

Third, and finally, I’d offer a cautionary note on the idea of equating treaties with international law, a move the current draft makes with some frequency.  Although the same move is made regularly in practice, I’m not as sure it’s established with respect to those who think about the sources of international law.  Indeed, anyone who writes about sources doctrine almost inevitably has to acknowledge that treaties are unlike the other sources of law (custom, general principles) since they are not “general rules of general application”, but specific “incidences of obligation”.  Just as contracts aren’t “law” but rather “lawful”, the argument can be made that treaties may be binding and enforceable, but that doesn’t mean they are themselves law, a view most famously expressed by Sir Gerald Fitzmaurice in ‘Some Problems Regarding the Formal Sources of International Law’ (1958) Symbolae Verzijl 153.   Now perhaps, the solution is to emphasize the French bifurcation of treaties into (1) traités contrat – involving rights and duties paired reciprocally in a synallagmatic manner, and (2) traités loi, which are deemed “law-making”  because the duties they impose are akin to domestic law rules of general application.  Under this approach, I’d assume the “law of nations” reference would cover traités loi but not traités contrat.  But again, I’m not sure whether Sarah or Bill would welcome that sort of caveat?

In any case, I found Defining and Punishing Offenses Under Treaties a truly provoking and important work of scholarship.  So, whether you’re a fan of Missouri v. Holland or not, this article’s worth a read, and I’d hope it gets one from the Court before they take up Bond later this term.