Carol Bond was initially thrilled when she learned her friend, Myrlinda Haynes, was pregnant. She was understandably a little less thrilled when she discovered that her husband, who had been having an affair with Haynes, was the father. So, naturally, Bond set out about making Haynes’s life “a living hell.” And in what can only be described as a tribute to her employment in a chemical facility, she decided the means best suited to this end included sprinkling toxic chemicals around Haynes’s car and mailbox. (With more fact patterns like this, Supreme Court briefs may well crowd out the reality television market.) This ludicrous yet (sort of, but not really) hilarious incident is coming to a close during this term at the high court, with the case Bond v. United States challenging the as-applied constitutionality of the federal statute underlying her conviction. In so doing, the Court may revisit a fundamental debate about what, if any, constraints federalism places on Congress’s power to pass domestic legislation implementing the terms of a treaty.
When the Eastern District of Pennsylvania returned an indictment against Bond, it was not for attempted murder, assault, or another such ordinary crime. Rather, she was charged with two counts of possessing and using a chemical weapon in violation of 18 U.S.C. 229(a)(1), initially enacted as the Chemical Weapons Implementation Act of 1998 (“the Act”). Among other things, §229(a)(1) makes it a crime to “develop, produce…possess, or use, or threaten to use, any chemical weapon.” A chemical weapon is subsequently defined as any toxic chemical used except for purposes not prohibited by the Chemical Weapons Convention (“CWC”), most notably any such chemicals used for “any peaceful purpose.” In other words, it was legal for Bond to retain and even use some of the toxic chemicals in question – for gardening purposes, say – but her conduct became criminal when her purpose grew not-so-peaceful.
Like other non-self-executing treaties, the CWC requires state parties to enact domestic legislation to give full legal force to its provisions. Petitioner’s primary contention is that using the treaty power to extend federal power to behavior such as Bond’s encroaches on principles of federalism; under any traditional conception, disciplining Bond’s conduct falls within the general police power reserved to the states under the Tenth Amendment. However, the Court should affirm the use of the CWC in this scenario as a constitutionally legitimate effectuation of the treaty power under the Necessary and Proper Clause: the Act both enumerated the offenses laid out in the CWC in haec verba – meaning that there is no material difference between the two – and does not offend any prohibitory language in the Constitution.
The Treaty Clause empowers the President, “by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present occur.” It is of unquestionable relevance that the Treaty Clause falls within Article II and not Congress’s enumerated powers in Article I §8. However, the Necessary and Proper Clause – which constitutes the eighteenth clause of that section – gives the Treaty Power meaning by empowering Congress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Herein lies the crux of the issue: can Congress, in passing domestic legislation to come into terms with a treaty that has been validly ratified, exceed what would otherwise be permissible under its enumerated powers in Article I?
The Court first addressed this question in Missouri v. Holland, whose broad conception of the treaty power petitioner seeks to revisit. “If the treaty is valid,” Justice Holmes wrote for the Court in that case, “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.” This argument would seem to assert that implementing the terms of any valid treaty – even if it provided for a general police power; the possession of a gun near a school-zone; the criminalization of dissident publications; or even the cessation of American sovereignty itself to the government of France – would constitute a constitutionally valid exercise of federal power.
However, asserting that the treaty power is itself an enumerated power whose effectuation can confer federal power where it did not otherwise exist does not necessarily connote the abolishment of our constitutional structure. “The treaty in question does not contravene any prohibitory words to be found in the Constitution,” Justice Holmes’s concurrence continues. “The only question is whether it is forbidden by some indivisible radiation from the general terms of the Tenth Amendment.” Indeed, since the Tenth Amendment reserves only those powers “not delegated to the United States” – one of which is the power to effectuate treaties under the Necessary and Proper Clause through the enactment of domestic legislation – no such “indivisible radiation” ought govern the Court’s rationale in Bond.
Affirming the scope of the treaty power set forth in Holland would not contravene the spirit of federalism – the idea that the federal government is one of limited and enumerated powers – because it remains subject to considerable constraints. First, there is a question of validity which, though uncontested in this case, necessitates an adequate nexus between the terms of the treaty and its domestic counterpart. If Congress purported to implement the CWC by regulating the possession of a gun near a school zone, for example, the implementing legislation would be invalid. Subsidiary to this argument is the contention – mocked by the justices at oral argument when the Solicitor General introduced it – that hypothetical extremes are not instructive to ascertaining the treaty power’s scope since engendering the requisite support of two-thirds of the Senate would be “unthinkable.” “It’s also unthinkable that you would bring this prosecution,” Justice Alito retorted. While such postulations of implausibility should not withstand judicial scrutiny, the validity question implicates implausibility by ensuring that any use of treaties to expand federal power through domestic legislation is burdened beyond ordinary statutory processes.
The second primary constraint is the “prohibitory words” concept set forth by Justice Holmes in Holland. For instance, domestic legislation implementing a treaty that purported to make Christianity the official religion of each of its parties would trespass on the prohibitory words of the First Amendment. Perhaps it is possible to identify some hypothetical in which upholding the validity of implementing domestic legislation would appear clearly antithetical to basic constitutional principles, though not contradictory to any prohibitory language. Proponents of petitioner’s position might well assert that this case, in offending principles of federalism, presents such a situation.
However, this position necessarily relies on the assumption that implementing domestic legislation offends the Constitution whenever it surpasses the boundaries of federal powers that otherwise exist. Indeed, in a case where the contested act implements in haec verba the provisions of a valid treaty relating to a matter of unquestionable import in foreign relations, to assert this is to deny the treaty power any force whatsoever. Whatever outer bound one may identify in the treaty power – whether prohibitory language or some other standard – it is enough to say that the federalism interest in Bond does not transgress it. To deny Congress the power to implement categorically and legally permissible treaties such as the CWC with domestic legislation under the Necessary and Proper Clause is to restrict the federal government’s status as a full sovereign on the world stage.