Guest Post: A Critique of Dodge and Cleveland, and Thoughts on Bond

Guest Post: A Critique of Dodge and Cleveland, and Thoughts on Bond

[John C. Dehn is an Assistant Professor at Loyola University Chicago School of Law]

In a recent article posted to SSRN, and introduced by Duncan here, Professors Sarah Cleveland and Bill Dodge (“the authors”) have done us all a great service in unearthing the history of the Offenses Clause and its inclusion of U.S. treaty violations.  Although I was originally suspect of their claim that the Offenses Clause empowers Congress to punish all U.S. treaty violations, as was obvious in my comments to Duncan’s post, I ultimately found myself convinced of this aspect of their thesis.

The persuasive evidence they marshaled to support this broad claim, however, caused me to question the rather uncertain limitation that they later placed on it: that conduct being punished pursuant to the Offenses Clause “must itself be condemned in some manner under international law.”  (p. 3, all bare page references are to draft article)  Further to this point, the authors posit that the Offenses Clause allows Congress to punish “when: (1) a treaty operates directly to prohibit the conduct; (2) a treaty expressly mandates that states punish the conduct; (3) a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment; [or] (4) a treaty authorizes punishment under international law, even if it does not require it.  In all such cases, however, it must be international law that condemns the relevant conduct, at least in general terms….”  (p. 53).

The intent behind these proposed limitations is laudable: to circumscribe what might otherwise be construed as virtually limitless congressional authority to regulate domestic matters potentially implicating U.S. treaty obligations.  Much of the evidence the authors offer in support of the broader claim seems to potentially undermine these limitations, that is, depending upon exactly what they intended to exclude.  (I, for one, would welcome the authors to provide examples of treaty provisions excluded by their proposed limitations.  In establishing their broader thesis the authors cited even congressional reliance upon what appear to be hortatory provisions of the U.N. Charter.  See p. 34).

Throughout the article, the authors rely on founding era and other evidence supporting a purposeful reading of the Offenses Clause. To summarize: (1) the Offenses Clause reaches treaty infractions because treaties, even bilateral treaties, become part of the law of nations; and, (2) the Offenses Clause was enacted so that Congress may ensure national compliance with the law of nations, including U.S. treaty obligations.  They present an abundance of pre- and post-constitutional evidence to support this broad thesis.  And they recognize that the law of nations applies not only to a state acting in its corporate capacity but also to its members acting individually.  Thus, the act of a single person may, in the proper context, place a nation in violation of its international obligations. In such circumstances, it would seem, the Offenses Clause allows regulation of any such act.

Indeed, the authors’ evidence strongly suggests that a relevant provision of international law need not “address” if this means to some affirmative extent, even generally (unless exceptionally generally), the precise conduct Congress is regulating pursuant to the Offenses Clause.  Any conduct capable of violating a treaty obligation in a proper context is susceptible of regulation.  To say that the law of nations includes treaties is to say that every act that results in a treaty violation is “condemned” by the law of nations.  Thus, it seems redundant for the authors to suggest, as a limitation, that “it must be international law that condemns the relevant conduct, at least in general terms.” And it seems internally inconsistent to require that “a treaty clearly proscribes the conduct, even if it does not operate directly on individuals or expressly mandate punishment.”  Violation of a general treaty provision may occur in myriad ways not mentioned or even contemplated at the time the relevant treaty was drafted and adopted.

The authors include several examples that support these observations, but two are most salient.  The first is their reference to Federalist No. 3, in which John Jay observed that “[t]he prospect of present loss or advantage may often tempt the governing party in one or two States to swerve from good faith and justice,” citing “[t]he case of the treaty of peace with Britain” as an example.  He then noted, “the national government, not being affected by those local circumstances, will neither be induced to commit the wrong themselves, nor want power or inclination to prevent or punish its commission by others.”  (p. 20)

Although I agree with the authors that Jay was likely referring to the Offenses Clause, his argument seems to be not that Congress cannot regulate even the most trivial treaty infractions that might be permitted by one or two of the several States, but that Congress would not do so.  Put differently, Jay’s argument is that however broad the Offenses Clause power might be in theory, Congress will not needlessly infringe upon state sovereignty in practice because it will only exercise that power to the extent needed to protect national interests.

The second example is the authors’ reference to congressional debates surrounding the late nineteenth century abuses of resident aliens in the form of all manner of violence, even lynching.  In response, a committee of Congress suggested legislation that “would have made it a federal crime to commit a violation of state law that also violated an alien’s rights under a treaty, and would have enforced the penalties provided for under states law.” (p. 33, citations omitted)  This proposal shows  the sheer magnitude of conduct that might place the U.S. in violation of very general treaty obligations.  The ensuing congressional debates did not indicate Congress believed this proposal was beyond its constitutional powers but rather “that it was unnecessary to confer such jurisdiction on United States court, and, therefore, impolitic because the prosecution of such offenses could be safely entrusted to state courts.” (p. 33, internal quotes and citation omitted.)

This evidence, and much more, supports a congressional power to regulate any conduct that would, in the proper context, violate a treaty obligation of the United States even if the treaty does not “clearly” proscribe the specific conduct at issue.

The authors’ thesis, even as limited, is still very broad, and potentially overbroad.  Proof lies in their belief that the Offenses Clause might support the federal legislation at issue in the Bond case now pending before the Supreme Court.  Bond attempted to poison her husband’s paramour by placing highly toxic chemicals on her mailbox, car door handles, and house doorknob.  She was convicted under a statute implementing obligations in the “Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction” (Chemical Weapons Convention or “CWC”).  The definitions of the CWC and its implementing legislation are quite broad and arguably encompass Bond’s activities.  However, the purposes and general obligations of the CWC, articulated in Article 1, do not appear to include the use of “chemical weapons” by private (non-state) parties when not “assisted, encouraged, or induced, in any way” by a state party.  The broad CWC definitions and obligations must be read in light of the treaty’s general obligations, object and purpose.  And while failing to prohibit conduct in violation of the treaty might in some circumstances be interpreted as “encouraging” or “assisting” that conduct, this is not that case; Bond was convicted of other crimes.  Thus, it does not appear that this federal legislation, as applied to Bond’s case, in any way advances U.S. interests related to compliance with the CWC.

Rather than relying on the Tenth Amendment, other “structural limits on federal authority” (See Bond’s Petition for cert.), or arguing for the Court to overrule Missouri v. Holland to some extent, Bond might be better served by arguing for an equally purposeful reading of the foreign affairs powers at issue as have the authors.  Whatever the alleged source of congressional authority underlying the CWC implementing legislation, be it the Offenses Clause or the treaty powers and Necessary and Proper Clause, this federal statute, as applied to Bond’s conduct, does not advance any U.S. national, foreign affairs or foreign relations interests related to the CWC.  It is therefore an arbitrary exercise of those powers as applied.  If this were the basis for a decision overturning the conviction, assuming no other congressional power supports the legislation—an issue upon which the government’s position has vacillated—the Court could distinguish Bond from Missouri v. Holland (because the nexus between the Migratory Bird Treaty Act of 1918 and the Migratory Bird Treaty of 1916 is much clearer) and avoid confronting Tenth Amendment or general federalism issues presented in the petition for certiorari.

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Marty Lederman
Marty Lederman

John:  I’m not sure I understand your point about the CWC and Bond.  The purposes of the convention are found in the Preamble, not Article I, and they include “for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons” and “promot[ing] free trade in chemicals . . . for purposes not prohibited under this Convention.”  Accordingly, one of the objectives of the CWC is to prevent private persons from using toxic chemicals to harm others.  Consistent with this, the treaty speciflcally requires the U.S. to prohibit all persons in the U.S. from using CWs, including “by enacting penal legislation with respect to such activity.”  See CWC arts. 1(1)(b) (prohibiting states from using CWs), VII(1)(a) (requiring states to prohibit “natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention”).  The statute in question directly implements that obligation by prohibiting all non-exempted uses of CWs.
So why would you conclude that a prosecution under that statute “does not advance any U.S. national, foreign affairs or foreign relations interests related to the CWC”?

Marty Lederman
Marty Lederman

John:  You’re absolutely right that the CWC is “focused on completing the work of earlier relevant treaties, which do not proscribe purely private uses of toxic chemicals as weapons.”  But one of the whole points of this treaty was to “complete the work” by addressing private uses.  (I believe the 1995 sarin gas attack in the Japanese subway was a principal example oft-invoked.) Were the “facts of Bond” contemplated?  Of course not.  But neither was it possible to contemplate many fact patterns involving future uses of CWs.  That’s why the treaty outlaws all nonpeaceful uses, categorically.  Paul Clement argues that the facts of Bond actually fall within the “peaceful uses” exemption — and that’s an argument the Court will have to consider carefully.  But if the case is not exempt under the CWC, then I don’t see why the application of the statute — which tracks the treaty obligation to prohibit all “uses,” just as the statute in Missouri v. Holland tracked the treaty obligation there — would be problematic. The briefs can be found here: On these issues generally, in addition to Paul’s briefs and the government’s, I recommend the briefs of CWC negotiators and of the American… Read more »


Jay’s reference to the “national government” might not have been to Congress or Congress alone, although I don’t have the full text before me.  It was not unusual to state that the government was bound by an international law while meaning the Executive.  The “national” government might arguably include the federal judiciary.  I note that C.J. Jay’s charge to the grand jury in Henfield’s Case (1793) was one that affirmed the propriety of direct incorporation of treaties and the customary law of nations for criminal sanction purposes (without the need for a federal statute) as well as the fact that individual and private actor liability existed under both sets of international law. Justice Wilson in his charge noted possible consequnces for the U.S. if it did nothing, e.g., did not prosecute or assure that money damages would be paid, and that the U.S. might become an accomplice to the crimes, which could lead to sanctions against the U.S. p.s. I note that in accordance with express terms of the 10th Amend., there is no state 10th Amend. interest vis a vis the treaty power, since the treaty power has been expressly delegated to the federal government and has been expressly denied to the… Read more »