Bond's breaches.

• Author: Swaine, Edward T.
• Position: Treaty power scope and its constitutional implications - Symposium on Treaty Power and Bond v. United States

Bond v. United States (1) illustrates a new maxim for today's Supreme Court: hard cases make no law at all. To be sure, Bond's bottom line was not particularly difficult. Few outside the Eastern District of Pennsylvania had great enthusiasm for using the Chemical Weapons Convention Implementation Act (2) (Chemical Weapons Convention or Convention) as a basis for prosecuting Carol Bond, who had used chemicals (some stolen from work, some purchased on Amazon.com) in an attempted revenge on her husband's lover. (3) And there was evident reluctance in the judiciary about turning this tabloid-ready case--which the Chief Justice, dubiously, called "unremarkable" (4)--into a precedent-setting referendum on the scope of the treaty power. Initially, the Third Circuit held, unconvincingly, that Bond lacked standing to raise a constitutional challenge. (5) After the Supreme Court reversed, (6) the Third Circuit held against Bond on the merits, (7) and the Supreme Court agonized as to whether it should take up the case again. (8)

But the Supreme Court ultimately did take the case, and once it did, it became hard to decide--at least in terms of the rationale. Although the Justices all favored reversal and dismissal of the indictment, they wound up providing little clarity on the larger questions the case raised. Chief Justice Roberts, for the majority, attempted to avoid any constitutional issue by holding that Congress did not intend for the Act to apply. (9) Justices Scalia (10) and Thomas, (11) writing separately, would instead have endorsed two significant constitutional objections to the Act. But only Justice Thomas's objection attracted the support of a third Justice (Justice Alito, who wrote briefly in support). (12)

If, as the more time-honored homily goes, hard cases otherwise make bad law, making little bad law was hardly the worst outcome. Nevertheless, what the Justices proffered was pretty bad. As explained in Part II, Bond's opinions mused about what they considered a potential constitutional breach: the gap between the national government's typical authority over domestic matters, on the one hand, and the domestic authority it might assert while implementing treaties, on the other. If tolerated, the basic argument went, such a gap would breach the constitutional commitment to a national government of limited authority. Justice Scalia and Justice Thomas, moreover, voiced concern that the federal government would actively exploit that gap. The problem, on their view, was not merely that treaties, like statutes, might occasionally breach a reserve of state authority; rather, treaties would be differentially exploited by the national government precisely for that reason. Each of the Court's opinions tried to establish a means by which the judiciary could prevent that from happening.

The real problem was that none of the nine Justices offered any counter-narrative. The majority did say that the statute in question was not a sufficiently overt attempt to trench on state prerogatives, but that was cold comfort: Chief Justice Roberts's exertions at statutory construction had little broader appeal (Justice Scalia, who did nothing to hide his distaste, reasonably doubted that other statutes would be subjected to such "gruesome surgery"), (13) and also offered little hope of aligning the international and domestic authority of the United States. As Part III indicates, the Court should have acknowledged the other forms of breach it was ratifying. The most obvious is the risk of jeopardizing U.S. compliance with its international obligations, contrary to constitutional principles designed to reduce that risk. By focusing on the prospect that the national government will exploit international opportunities to expand its authority--or at best, per the Chief Justice, that Congress legislates with the same attitude toward state and local authority that it always does--the opinions failed to provide the kind of comprehensive account that could guide the political branches and future courts.

1. THE POST-HOLLAND TERRAIN

   The grant of certiorari in Bond followed resurgent anxiety over the perceived gap between the national government's authority over domestic matters and its potential authority over such matters in the wake of an Article II treaty. Missouri v. Holland (14) had long ago established two propositions: first, that the United States has constitutional authority to enter into treaties relating to matters not falling within Congress's enumerated powers; (15) and second, that in the event such a treaty is non-self-executing and requires statutory implementation, Congress can--if it would not otherwise possess the authority to adopt such a statute--rely on the Necessary and Proper Clause. (16)

   The salience of Holland's holdings depends, naturally, on the number and nature of U.S. treaty obligations. But it also depends on the breadth of Congress's purely domestic authority. As the Supreme Court has acknowledged, its case law on this latter question has ebbed and flowed. (17) Its most recent drift--after the Court overruled National League of Cities and in turn stopped relying on the political safeguards of federalism (18)--has been to reinvigorate the judicial role in policing Congress's domestic authority. Most recently, opinions in National Federation of Independent Business v. Sebelius (NFIB) (19) suggested without clearly deciding that further inroads might be made. (20) These jurisprudential shifts, rather than any treatymaking boom, revived the relevance of Holland. (21)

   Bond was an obvious, yet obviously flawed, vehicle for assessing this situation. The case involved an attenuated use of a treaty-implementing statute in an area of traditional state competence; because the United States had decided in the lower courts not to invoke the Commerce Clause as a basis for the Act, (22) everything was made to rest on the treaty power and the Necessary and Proper Clause. It was like a law school exam hypothetical, drafted--replete with absurd facts--to focus on an infrequently isolated issue. It certainly had all the liabilities of that form. The government's concession below did not appear to be based on any genuine conviction that the Commerce Clause was irrelevant, (23) which meant that the relative scope of unassisted domestic authority and treaty-based authority--whether and to what extent the treaty took advantage of some gap--could not be fairly tested or fully understood. Nor (unlike Holland itself) was the treaty even arguably designed to circumvent the limits of domestic authority, such as might have created a cautionary tale for future undertakings.

   Perhaps mindful of these limitations, the majority failed even to attempt a recalibration in the case law, disappointing those who hoped for something more revolutionary. Chief Justice Roberts, writing for himself and five others, invoked the principle that constitutional holdings should be avoided if other grounds for decision are available. (24) The majority then held that the Act did not cover Bond's assault, because Congress failed to provide a sufficiently clear indication that it intended to encroach on the police power of the states. (25)

   Justice Scalia, joined in his statutory analysis by Justices Thomas and Alito, rejected the majority's redemptive reading of the Act, necessitating consideration of its constitutional basis. (26) There a slight schism emerged. Justice Scalia, writing for himself and for Justice Thomas, opined that the Act was unconstitutional because even if the Convention was valid, Congress lacked the authority under the Necessary and Proper Clause to implement it. (27) Justice Thomas, joined by Justice Scalia, but also by Justice Alito, would have limited the treaty power itself, on the basis that it was restricted to agreements that stuck to legitimate international matters and avoided purely domestic matters like Bond's. (28) Justice Alito summarized his view separately. (29)

2. BREACHING DOMESTIC RESTRAINTS

   1. The Phantom Menace

      By and large, the majority treated any divide between treaty-enabled and domestic authority as hypothetical. Chief Justice Roberts expressed doubt that the Convention actually required prosecution of someone like Bond, though he did not rest on that basis. (30) Instead, he reasoned, "the statute-- unlike the Convention--must be read consistent with principles of federalism inherent in our constitutional structure." (31) Those principles required avoiding anything that would "dramatically intrude [ ] upon traditional state criminal jurisdiction," or "affect[ ] the federal balance," "[a]ffect a significant change in the sensitive relation between federal and state criminal jurisdiction," or "render[ ] traditionally local criminal conduct a matter for federal enforcement and ... also involve a substantial extension of federal police resources." (32) In Bond's own gloss, these principles fueled not just the reaction to statutory ambiguity, but also its detection in the first place. Each, it seemed, being motivated by "the improbably broad reach" of the statutory definition, "the deeply serious consequences of adopting such a boundless reading," and "the lack of any apparent need to do so in light of the context from the statute arose--a treaty about chemical warfare and terrorism." (33)

      Justice Scalia critiqued this approach with trademark vigor, but its merits are less important than its consequences. By the majority's lights, the question presented by the petition--whether the Act parlayed a treaty obligation into an unconstitutional extension of Congress's legislative authority--did not need to be answered. At some points, the Court seemed interested in what Congress actually intended to regulate. (34) At other times, it looked like a clear statement rule, asking instead that Congress overcome the intent established for it by virtue of the rule itself. (35) The point in either event was that the...