The Supreme Court Issues Its Decision in Bond, and Human Rights Advocates Breathe a Sigh of Relief
The recent decision by the Supreme Court in Bond v. United States did not affect the power of Congress under the Constitution to enact legislation to implement an international treaty. Although the constitutional question was raised, the Court wisely avoided it as unnecessary to the resolution of the case, which was instead decided on canons of statutory interpretation.
Mrs. Bond had repeatedly sprayed poisonous chemicals on the mailbox and doorknob of her husband’s lover and was consequently charged with possessing and using chemical weapons (18 U.S.C. subsection 229(a)(1)) the federal statute adopted to implement the Chemical Weapons Convention. She argued that her acts were entirely domestic in nature. According to Mrs. Bond, the statute in question “exceeded Congress's enumerated powers and invaded powers reserved to the States by the Tenth Amendment” She questioned whether Congress had the power to adopt legislation to implement a treaty that would reach matters otherwise normally handled by state law –i.e. domestic criminal conduct.
The Court of Appeals for the Third circuit had rejected her claim citing Missouri v. Holland, decided by the Supreme Court in 1920, which held that if “the treaty is valid there can be no dispute about the validity of the statute” that implements it under the necessary and proper clause (article I, section 8 of the Constitution). According to Mrs. Bond, this reading of Holland meant giving unlimited power to federal authorities in the implementation of a treaty.
The Supreme Court decided to avoid this question. And there were good reasons to do so:
First, the situation presented in Bond was exceptional and didn’t warrant revisiting decades of consistent practice. In fact, the United States generally limits its obligations under treaties through a set of reservations designed to preserve the constitutional allocation of powers between the federal government and the states. Take for instance the reservation to the United Nations Convention against Transnational Organized Crime, where the United States limited its obligations on criminalization to that conduct which affects interstate commerce or other federal interest. With this reservation the U.S. made sure that whatever criminal statute it needed to enact to implement the convention was already compatible with its federal model. The Chemical Weapons Convention is an exception in this sense since its article XXII prohibits reservations to the text of the treaty, which shows how exceptional the situation presented in Bond was.
Second, article II treaties—those adopted by the president with the consent of the senate—such as the Chemical Weapons Convention are uncommon. As a matter of fact, most international agreements are carried out thorough executive action and not as treaties (the CRS reports that between 1939 and 2013 the U.S. has concluded roughly 17,300 executive agreements and only 1,100 treaties). Accordingly, the discussion of the scope of the Necessary and Proper clause is rather exceptional in the context of the country’s everyday engagement in international relations.
Regardless, the minority opinions of Justices Scalia, Thomas, and Alito did address the constitutional questions posed in this case.
Justice Scalia proposed reading the Necessary and Proper clause as granting Congress power to take action on stages leading up to the formation of treaty, but not granting any power to adopt implementing legislation. Under this reading Congress would have to use its article I, section 8, powers to adopt any legislation. Congress would therefore not be permitted to pass laws implementing treaty obligations unless the law fell within the scope of other congressional lawmaking powers. Following this reasoning, Missouri v. Holland would have to be overruled.
More alarming is the opinion written by Justice Thomas. He goes even further, suggesting that the scope of not only the Necessary and Proper clause but also the Treaty Powers should be restricted. Justice Thomas believes that the Treaty Power “is limited to matters of international intercourse.” Thomas’ opinion attempted to draw substantive limits to the Treaty Power by distinguishing between purely domestic matters and issues of international intercourse. Under this view, human rights treaties, which establish rules for a State’s treatment of its own population, would potentially be unconstitutional if deemed purely domestic matters.
Similarly, Justice Alito’s brief opinion explicitly stated that the Chemical Weapons Convention exceeded the limits of the Treaty Power.
These minority positions are evidently dangerous as they would restrict the capacity to adopt legislation to implement a validly ratified treaty or, even worse, would impose restrictions on the capacity of the federal government to negotiate and sign treaties based on their subject matter.
Justice Scalia’s restriction of the capacity to adopt implementing legislation opposes decades of domestic practice in which U.S. courts have upheld a broad reading of the Necessary and Proper clause. Additionally, this position would leave the U.S. unable to properly conduct its international relations. After all, who would enter into a treaty with a sovereign that does not have the capacity to fulfill its international commitments?
Additionally, Justice Thomas’ position suggesting a restriction of the capacity of the U.S. to adopt treaties would turn the United States into virtually the only country incapable of fully engaging in international negotiations. As Golove and Lederman highlight, following Thomas’ reasoning the U.S. would be precluded from entering into treaties concerning a vast set of issues “as varied as the environment, health, terrorism, and kidnapping.” The truth of the matter is that a clear division between domestic affairs and issues of international intercourse no longer exists. The international community as a whole has redefined those limits, and the United States has played a relevant role in that process. Adopting Thomas’ view would contradict U.S. practice, turning it into an outsider unable to engage with the international community.
Also, Justice Thomas’ position overlooks important constitutional safeguards behind the Treaty Powers: what Hathaway calls the structural checks on treaty powers. In fact, the Constitution did not leave the treaty power entirely on the hands of the Executive, but assigned an important role to the Senate, which acts as a counterbalance against a potentially overreaching President. At the same time, the adoption of a treaty requires the support of two-thirds of the senate, which ensures that only treaties with vast support are adopted.
This system of structural checks ensures that the Treaty Powers are exercised in a manner consistent with the federal model embraced by the Constitution. At the same time, this model grants the federal government enough flexibility to adapt to the changes in international relations. Thankfully, the majority in Bond recognized the success of this model and the long-lasting domestic practice that supports it.
 CRS Report, International Law and Agreements: Their Effect upon U.S. Law, January 23, 2014, p. 5.
 O. Hathaway, et al, The Treaty Power: Its History, Scope, and Limits, Yale Law School, Public Law Working Paper No. 2 Yale Law School, Public Law Working Paper No. 267, p. 33.
 Ibid., p. 55.