02 Jun Supreme Court Ducks Broad Treaty Power Ruling in Bond v. United States
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.