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.

Comments

This article is wrong on a number of levels, beginning with two egregious errors in the first sentence:

"Given the ongoing Republican assault on essential federal powers, . . . " The fly in that particular ointment is the word "essential". Applying a federal criminal statute intended to deal solely with chemical warfare among nations to a purely local crime is the antithesis of "essential". And I would further argue that nothing the Republicans have done in decades comes close to limiting federal powers, essential or otherwise. They are as much the party of Big (federal) Government as are the Democrats.

"It is generally not good news when the Supreme Court narrowly construes a federal statute in deference to state authority." To the contrary, it is a rare occurrence, one to be greatly celebrated, when the SC narrowly construes any federal statute. The principal purpose of the Constitution is to limit federal power, a fact which has been almost wholly forgotten by the Court over the last century or so. The decision in Bond was a welcome aberration; I hope it is the harbinger of many more such to come.

Here's another whopper: "The Constitution places very real limitations on the treaty power." There are procedural limitations on the treaty power, yes, but absolutely no substantive ones. All it takes is one venal president and a supermajority of foolish senators (hardly a rare event!) to get past those vaunted procedural limitations; the Supreme Court is a necessary (if not exclusive) guardian of the substantive issues. Which is what the dissent was doing in this case.

Finally, the substance of the argument here seems to be that if a treaty is properly ratified, that ends the debate, and any implementing legislation is off limits for Supreme Court review. Nonsense. The statute could be overly broad (as was the case here), or the reach of the treaty (either by its own terms or as implemented by the statute) unconstitutional. Either is possible. In this case the majority relied on the first flaw (a wholly rational interpretation, by the way) and the dissenters on the second. They are not wrong.

The structure of the Constitution is clear: the supreme law of the land is the Constitution itself; second comes properly ratified treaties; and finally comes federal statutes. Implicit in the wording of the Constitution is that precise order of priority: thus, if a statute violates either a treaty or the Constitution it is void, and if a treaty violates the Constitution it is void. No mere treaty can overcome a Constitutional protection. (Which is why I have no concerns about the proposed UN small-arms treaty: it cannot override the 2nd Amendment's protection of the right to keep and bear arms.) What the dissent essentially held here is that the treaty (properly ratified though it was) was over-broad and beyond the proper scope of federal authority, and hence void. So to those justices it was unnecessary to even reach the question about whether the statute properly implemented the treaty's purposes. They are correct.

Erratum: In the last paragraph of my previous post I inadvertently reversed the order of priority of treaties and statutes. The Constitution specifies (in Article VI, cl.2) that the Constitution itself, statutes made pursuant to it, and treaties are the "supreme law of the land". That sequence provides the order of priority should there be a conflict among any of them. My essential point remains correct: treaties, even properly ratified ones, cannot supersede the Constitution any more than statutes can.

You need to be logged in to comment.
(If there's one thing we know about comment trolls, it's that they're lazy)

Connect
, after login or registration your account will be connected.
Advertisement