May the president and the Senate, by making and consenting to a treaty, override the limits that the Constitution otherwise imposes on Congress’s enumerated powers? That’s the fundamental question presented in Bond v. United States, a case in which the Supreme Court recently granted review.
This important legal question arises in a soap-opera setting: When Carol Anne Bond discovered that her husband had impregnated her best friend, Myrlinda Haynes, she decided to punish Haynes by spreading irritant chemicals on surfaces that she expected Haynes to touch. Bond carried out her campaign of chemical attacks over a period of three months before she was captured. In addition to what must have been substantial emotional trauma and inconvenience, Haynes ended up with a thumb burn.
The Chemical Weapons Convention is an international treaty that prohibits signatory nations from developing, possessing, or using chemical weapons and that requires them to adopt measures prohibiting private companies and individuals from engaging in such activities domestically. The Senate gave its consent to the Convention in 1997, and Congress, to implement the Convention, then enacted the Chemical Weapons Convention Implementation Act of 1998. Among other things, that Act provides criminal penalties for anyone who knowingly uses any chemical weapon.
For whatever reason, rather than leaving the matter to local law enforcement, the United States prosecuted Bond for violation of the Act. In response to Bond’s claim that the Act’s application to her exceeded Congress’s powers, the United States disclaimed reliance on Congress’s Commerce Clause power and instead relied on Congress’s power under the Necessary and Proper Clause to implement a treaty.
A “No” answer to the opening question of this post is, I believe, the right one and might be obvious to nearly everyone, were it not for dictum in the Supreme Court’s 1920 ruling in Missouri v. Holland. Alas, the Department of Justice has adopted what Bond’s counsel, former Solicitor General Paul Clement, properly labels a “sweeping vision” of Congress’s treaty-implementing power.
For readers interested in exploring this matter more deeply, I’ll refer you to the SCOTUSblog page on the case (which currently has the briefing on the cert petition), this Lawfare post by Duke law professor Curtis Bradley, and a Volokh Conspiracy debate between law professor Rick Pildes (on the federal government’s side) and law professors Nicholas Quinn Rosenkranz and Ilya Somin. (This late post in the VC debate will lead to other parts of the debate.) Also, I spelled out the general transnationalist game on treaties in this post (from my series on Harold Koh’s 2009 nomination to be State Department legal adviser).