The Supreme Court and the Power to Make Treaties

Given the ongoing Republican assault on essential federal powers, It is generally not good news when the Supreme Court narrowly construes a federal statute in deference to state authority. Monday's ruling in Bond v. U.S., however, is an exception. A majority of the Court refused to accept conservative arguments that would severely limit the power of Congress to enforce treaties signed by the United States. The dissents by Justices Scalia and Thomas, conversely, show that this case could have been a vehicle for a major new limitation on federal power.

The facts in Bond, summarized in an excellent story by Newsweek's Pema Levy, are the stuff of soap opera. Carol Bond, a microbiologist, put highly toxic chemicals on various surfaces at the home of Myrlinda Haynes, her erstwhile best friend and husband's lover. Haynes escaped the dangerous trap set for her with only minor burns.

Nonetheless, Bond was prosecuted under Section 229 of the federal Chemical Weapons Convention Implementation Act. The statute, which, as its title suggests, implemented the treaty on chemical weapons signed by President Clinton and ratified by the Senate in 1997. Section 229, closely tracking the language of the treaty, makes it a crime to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” Bond entered into a guilty plea on the charges while retaining her right to appeal.

When Bond appealed based on an argument that the charges under Section 229 exceeded federal powers, her claim was initially denied on standing grounds, but the Supreme Court intervened and held that Bond did have standing to bring an appeal. This led to some speculation the Court intended to use this case to substantially cut back on the power to enforce treaties. The federal government did not defend Section 229 as an exercise of the federal power to regulate interstate commerce, but rather as being "necessary and proper" to the power to make treaties.

The Court, however, ultimately decided in favor of Bond, but on narrow grounds. The majority opinion, written by Chief Justice Roberts and joined by Justice Kennedy and the Court's four Democratic nominees, declined to address the question of whether Section 229 was a valid exercise of Congress's power to execute treaties. Instead, based on the longstanding doctrine that the Court should not decide a constitutional question unless it is necessary, the majority determined that Congress did not intend to reach minor, local crimes such as Bond's when it passed the law. "[T]he global need to prevent chemical warfare," concludes Roberts, "does not require the Federal Government to reach into the kitchen cupboard or to treat a local assault with a chemcal irritant as the deployment of a chemical weapon."

The majority opinion represents jurisprudence upholding federalism at its most defensible. Given statutory ambiguity and a crime almost everyone would concede is an essentially local one, the Court interpreted the federal law narrowly, but in a way that preserved a broader federal authority should Congress determine that intervention was clearly necessary.

The dissenting justices, conversely, would have used the case to radically revise existing precedent. The dissenting opinions of Justices Antonin Scalia and Clarence Thomas (joined on many points by Justice Samuel Alito, who filed a brief dissent of his own) would have held that Section 229 clearly applied to Bond's actions, and would then conclude that it was therefore unconstitutional.

The Court has never held that a statute ratifying a treaty has exceeded Congress's powers under the necessary and proper clause of Article I. In a 1920 opinion written by Oliver Wendell Holmes, the Court held that "if the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government." The dissenters would overrule this longstanding precedent, arguing that the necessary and proper clause does not give Congress the power to enforce treaties if doing so would encroach on state prerogatives. Justice Thomas's dissent, in addition, would limit the federal power to make treaties itself on federalism grounds.

The Court was wise, however, not to adopt the positions advocated by the dissenters. The Court has held for nearly two centuries that the necessary and proper clause should be construed broadly, and placing arbitrarily limits on the ability of Congress to pass legislation necessary and proper to its enumerated powers would (as the constitutional challenger to the Affordable Care Act makes clear) lead to all kinds of judicial mischief. Justice Thomas's attempt to place subject matter restrictions on the treaty power, similarly, lacks a serious basis in the text or structure of the Constitution.

The Constitution places very real limitations on the treaty power: the president must agree, ratification requires a large supermajority of the Senate, and if the treaty is not self-executing Congress must also pass additional legislation that requires the president's signature. These political checks are more than sufficient, and the Court was right today not to read further limitations on the treaty power based on arguments with no basis in precedent and little basis in the text of the Constitution. Given the ongoing Republican assault on essential federal powers, It is generally not good news when the Supreme Court narrowly construes a federal statute in deference to state authority. Monday's ruling in Bond v. U.S., however, is an exception. A majority of the Court refused to accept conservative arguments that would severely limit the power of Congress to enforce treaties signed by the United States. The dissents by Justices Scalia and Thomas, conversely, show that this case could have been a vehicle for a major new limitation on federal power.

The facts in Bond, summarized in an excellent story by Newsweek's Pema Levy, are the stuff of soap opera. Carol Bond, a microbiologist, put highly toxic chemicals on various surfaces at the home of Myrlinda Haynes, her erstwhile best friend and husband's lover. Haynes escaped the dangerous trap set for her with only minor burns.

Nonetheless, Bond was prosecuted under Section 229 of the federal Chemical Weapons Convention Implementation Act. The statute, which, as its title suggests, implemented the treaty on chemical weapons signed by President Clinton and ratified by the Senate in 1997. Section 229, closely tracking the language of the treaty, makes it a crime to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” Bond entered into a guilty plea on the charges while retaining her right to appeal.

When Bond appealed based on an argument that the charges under Section 229 exceeded federal powers, her claim was initially denied on standing grounds, but the Supreme Court intervened and held that Bond did have standing to bring an appeal. This led to some speculation the Court intended to use this case to substantially cut back on the power to enforce treaties. The federal government did not defend Section 229 as an exercise of the federal power to regulate interstate commerce, but rather as being "necessary and proper" to the power to make treaties.

The Court, however, ultimately decided in favor of Bond, but on narrow grounds. The majority opinion, written by Chief Justice Roberts and joined by Justice Kennedy and the Court's four Democratic nominees, declined to address the question of whether Section 229 was a valid exercise of Congress's power to execute treaties. Instead, based on the longstanding doctrine that the Court should not decide a constitutional question unless it is necessary, the majority determined that Congress did not intend to reach minor, local crimes such as Bond's when it passed the law. "[T]he global need to prevent chemical warfare," concludes Roberts, "does not require the Federal Government to reach into the kitchen cupboard or to treat a local assault with a chemcal irritant as the deployment of a chemical weapon."

The majority opinion represents jurisprudence upholding federalism at its most defensible. Given statutory ambiguity and a crime almost everyone would concede is an essentially local one, the Court interpreted the federal law narrowly, but in a way that preserved a broader federal authority should Congress determine that intervention was clearly necessary.

The dissenting justices, conversely, would have used the case to radically revise existing precedent. The dissenting opinions of Justices Antonin Scalia and Clarence Thomas (joined on many points by Justice Samuel Alito, who filed a brief dissent of his own) would have held that Section 229 clearly applied to Bond's actions, and would then conclude that it was therefore unconstitutional.

The Court has never held that a statute ratifying a treaty has exceeded Congress's powers under the necessary and proper clause of Article I. In a 1920 opinion written by Oliver Wendell Holmes, the Court held that "if the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government." The dissenters would overrule this longstanding precedent, arguing that the necessary and proper clause does not give Congress the power to enforce treaties if doing so would encroach on state prerogatives. Justice Thomas's dissent, in addition, would limit the federal power to make treaties itself on federalism grounds.

The Court was wise, however, not to adopt the positions advocated by the dissenters. The Court has held for nearly two centuries that the necessary and proper clause should be construed broadly, and placing arbitrarily limits on the ability of Congress to pass legislation necessary and proper to its enumerated powers would (as the constitutional challenger to the Affordable Care Act makes clear) lead to all kinds of judicial mischief. Justice Thomas's attempt to place subject matter restrictions on the treaty power, similarly, lacks a serious basis in the text or structure of the Constitution.

The Constitution places very real limitations on the treaty power: the president must agree, ratification requires a large supermajority of the Senate, and if the treaty is not self-executing Congress must also pass additional legislation that requires the president's signature. These political checks are more than sufficient, and the Court was right today not to read further limitations on the treaty power based on arguments with no basis in precedent and little basis in the text of the Constitution.

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