Defining and punishing offenses under treaties.

• Author: Cleveland, Sarah H.
• Position: Introduction into II. Congressional and Judicial Interpretation A. Congress's Understanding of the Offenses Clause, p. 2202-2243

ARTICLE CONTENTS INTRODUCTION I. THE ORIGINAL UNDERSTANDING OF THE OFFENSES CLAUSE A. The Meaning of the "Law of Nations" B. The Historical Context of the Offenses Clause C. Drafting the Offenses Clause D. Ratification Debates E. Constitutional Design II. CONGRESSIONAL AND JUDICIAL INTERPRETATIONS A. Congress's Understanding of the Offenses Clause B. Supreme Court Precedent III. THE SIGNIFICANCE OF TREATIES IN MODERN INTERNATIONAL LAW IV. IMPLICATIONS FOR IMPLEMENTING LEGISLATION A. Four Categories of Treaties 1. Treaties That Directly Prohibit Conduct by Individuals 2. Treaties That Require Domestic Legislation Punishing Conduct 3. Treaties That Mandate Certain Conduct but Do Not Expressly Require Punishment for Violations 4. Treaties That Authorize Punishment of Certain Conduct B. Congress's Discretion Under the Offenses Clause CONCLUSION INTRODUCTION

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with the United States's international legal commitments. (1) In recent years, Congress's power to implement treaties has received particular attention from both the legal academy and the Supreme Court. Scholars have debated the application of federalism principles to treaties and whether the combination of the Article II treaty power and the Necessary and Proper Clause gives Congress constitutional authority to regulate matters that would otherwise lie beyond its Article I powers. (2)

Last Term, these debates reached the U.S. Supreme Court in Bond v. United States. (3) The defendant argued that Congress lacked the power to apply the Chemical Weapons Convention Implementation Act of 1998 (4) to her attempt to poison a romantic rival with toxic chemicals.s In the end, the Court avoided the constitutional question, holding as a matter of statutory interpretation that the Act did not reach Bond's conduct in the absence of "a clear indication that Congress meant to reach purely local crimes." (6) Justices Scalia and Thomas, on the other hand, would have held that the Necessary and Proper Clause does not give Congress the power to implement treaties, (7) while Justices Thomas, Scalia, and Alito were prepared to impose subject-matter limitations on the treaty power. (8) Justice Thomas predicted that "[gjiven the increasing frequency with which treaties have begun to test the limits of the Treaty Power," the chance to address the constitutional limits on Congress's authority "will come soon enough." (9)

This Article contributes to the ongoing debate by identifying and comprehensively exploring the role of the Offenses Clause as an additional source of congressional authority to implement certain treaty commitments. That clause gives Congress the power "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." (10) Past scholarship has commonly assumed that the phrase "the Law of Nations," as used in the Offenses Clause, refers exclusively to customary international law. (11) Under this reading, Congress may rely on the Offenses Clause to legislate regarding a rule of customary international law, but if Congress wishes to enact legislation to implement a treaty, it must invoke some other authority, such as its commerce power or the Article II treaty power coupled with the Necessary and Proper Clause. This Article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional and complementary source of authority for Congress to implement certain treaty commitments.

We attribute the conventional and narrow reading of the Offenses Clause to the intensive focus of foreign relations law scholars over the past thirty-five years on the Alien Tort Statute (ATS). (12) The ATS uses the phrase "law of nations" to refer to the unwritten law of nations (13) in contradistinction to treaties, providing district court jurisdiction over any civil action "by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (14) Most scholars have simply assumed that the phrase "law of nations" in the Offenses Clause must have the same limited meaning that it has in the ATS. (15) Yet this is a dangerous assumption. The term "international law," for example, is generally understood today to include both customary international law and treaties, (16) despite the fact that it is sometimes used to refer more narrowly to customary international law alone. (17)

The same was historically true of the phrase "law of nations." The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called "the conventional law of nations." The principal purpose of the Offenses Clause--to facilitate compliance with the United States's international commitments--also supports reading its reference to the "law of nations" to include treaties. And reading the phrase broadly is most consistent with the pre-1787 history, as well as the drafting and ratification of the Offenses Clause. In other words, the most accurate modern translation of the "law of nations" as used in the Offenses Clause into contemporary parlance is not "customary international law" but rather "international law," which includes both customary international law and treaties. (18)

The Offenses Clause thus formed part of a comprehensive effort to ensure that Congress could enforce all international law, and to free the United States from having to rely on enforcement by the several States. The Framers accomplished this by creating an express enumerated power to punish in the Offenses Clause that overlaps with, and complements, Congress's authority under the Commerce Clause (19) and under the Necessary and Proper Clause coupled with the Article II treaty power. (20) Indeed, the Framers considered the power to penalize individual conduct to be such an important part of the United States's overall authority to enforce international law that the power to define and punish offenses against the law of nations in the Offenses Clause is one of just three enumerated powers in the Constitution that expressly grant Congress the power to punish. (21)

The understanding that the Offenses Clause allows enforcement of all international law has not been entirely lost. Despite the prevailing view in the academy, Congress, the executive branch, and the Supreme Court have shared this understanding of the Offenses Clause through most of our nation's history. When enforcing treaties, Congress has not always specified the source of its authority. But when it has, it has often invoked the Offenses Clause, at times in conjunction with its powers under the Commerce Clause and the Article II treaty power. Indeed, in recent years, Congress has increasingly invoked the Offenses Clause as authority for legislation to enforce treaties. (22) Reading the Offenses Clause to reach treaties is also consistent with past decisions of the Supreme Court, which have focused on the Clause's core purpose of furthering the United States's "vital national interest in complying with international law" (23) and have expressly recognized that Offenses Clause legislation can include enforcement of treaties. (24)

Reading the Offenses Clause to extend to both treaties and customary international law is as important today as it was at the Founding. International lawmaking is increasingly dominated by international agreements, including agreements that codify and expand upon preexisting norms of customary international law. It makes little sense to think that Congress could exercise authority under the Offenses Clause to punish assaults against diplomats when their protection under international law rested exclusively on custom, but that when the United States ratified the Vienna Convention on Diplomatic Relations in 1972, Congress was deprived of the authority to implement those more detailed treaty obligations through the Offenses Clause and had to rely on other constitutional grants of legislative power.

Our argument responds to some, though not all, of the constitutional questions raised by the concurring opinions in Bondfs Justice Scalia (joined by Justice Thomas) would have held that the Necessary and Proper Clause gives Congress the power to help the President make treaties but not to implement them. (26) Justice Scalia's argument was both textual and structural. With respect to text, he noted that the Necessary and Proper Clause gives Congress authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution" powers vested in the President, (27) but that Article II vests in the President only the power "to make Treaties." (28) With respect to structure, Justice Scalia argued that his reading was necessary to avoid a "vast expansion of congressional power." (29) Particularly if "the Treaty Clause comes with no implied subject-matter limitations," (30) Congress would be "only one treaty away from acquiring a general police power." (31) Others have explained why this exceedingly narrow reading of the Necessary and Proper Clause and the treaty power is mistaken. (32) Our argument simply renders Justice Scalia's reading moot with respect to the implementation of certain treaty obligations, because we identify an Article I basis for Congress's power in addition to the Commerce Clause. (33)

Justice Thomas (joined by Justices Scalia and Alito), and Justice Alito writing for himself, would also have recognized subject-matter limitations on the treaty power by holding that "the Treaty Power can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs." (34) The Supreme Court, however, has long held that the treaty power "extends to all proper subjects of negotiation with foreign governments." (35) As Oona Hathaway and her co-authors have shown, the drafters of the Constitution understood the need for flexibility and...