This Article focuses on Justice Scalia's concurrence in the judgment in Bond v. United States. (1) It makes three main points. First, Scalia's claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution's original meaning. Congress's power to enact laws necessary and proper to carry into execution the treatymaking power can be read to include the power to enforce treaties because treatymaking and treaty enforcement are inevitably intertwined. As the Framers understood from experience, a nation with a reputation for unreliable treaty enforcement would be impaired in its ability to make future treaties, as potential partners would regard it as untrustworthy. Further, Scalia's claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government's power without limit. But this structural point is overstated, both because treatymaking itself is constrained by the need for supermajority Senate consent and because federal power can be exercised through self-executing treaties regardless of limits on Congress. Indeed, structural considerations cut at least as strongly the other way, for it seems unlikely after the experiences of the Articles of Confederation that the Framers would have accepted a category of treaties whose enforcement could not be assured at the national level.
Second, Scalia's structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress's claims about what action is necessary and proper to enforce a treaty. If Congress alone can decide what a treaty means and what its enforcement requires, Congress may use the treaty to claim powers not contemplated by the treatymakers. Congress could thus invoke the treaty while circumventing the supermajority constraint on treatymaking.
Third, therefore, courts should not defer fully to Congress in this matter; instead, they should assure that Congress's actions do not exceed what is justified by the treaty. Although Congress has power to pass laws necessary and proper to preserve the United States' reputation for treaty compliance, Congress must use this power in ways that do not unduly infringe federalism. In particular, this Article suggests two types of judicial limitations. Courts can make an independent assessment of the meaning of the treaty, including employing a presumption that treaties do not affect purely domestic matters. Courts can also review the necessity and propriety of Congress's enforcement legislation, prominently including in this assessment whether enforcement of the treaty is appropriately done at the federal rather than the state level. As a result, Congress's power to enforce treaties, while broad, need not be unlimited.
As an illustration, application of this approach in Bond v. United States would find the federal legislation (as applied to Bond) beyond Congress's power, both because the Chemical Weapons Convention did not reach Bond's conduct and because even if it did, state regulation was adequate to assure U.S. compliance with the Convention. As a result, although Congress has power to enforce treaties (contrary to Justice Scalia's view), its power is sufficiently limited so that it does not pose an undue threat to federalism.
CONGRESS'S POWER TO ENFORCE TREATIES
Concurring in the judgment in Bond v. United States, Justice Scalia (joined by Justice Thomas) argued that a federal statute implementing a treaty, if not otherwise within the powers of Congress, is unconstitutional:
Since the Act is clear, the real question this case presents is whether the Act is constitutional as applied to petitioner. An unreasoned and citation-less sentence from our opinion in Missouri v. Holland purported to furnish the answer: "If the treaty is valid"--and no one argues that the Convention is not--"there can be no dispute about the validity of the statute under Article I, [section] 8, as a necessary and proper means to execute the powers of the Government." Petitioner and her amici press us to consider whether there is anything to this ipse dixit. The Constitution's text and structure show that there is not. (2) As Scalia's assessment makes clear, the core question is whether Congress's "necessary and proper" power extends to statutes that enforce treaties. The Court's assumption in Missouri v. Holland (and Scalia is right that it is just an assumption) was that (a) the treaty power is a power of the federal government; (b) Congress has the power to "carry into execution" the powers of the federal government; and (c) legislation that enforces a treaty provision carries into execution the treaty power. (3) Scalia makes a twofold counterargument, based on text and structure. In this Part, I argue that he is unpersuasive on both counts.
Following Nicholas Quinn Rosenkranz's pathbreaking article, (4) Scalia argues that the Constitution's text--the combination of the treatymaking clause and the Necessary and Proper Clause--does not give blanket treaty enforcement power to Congress. As Scalia puts it:
Under Article I, [section] 8, cl. 18, Congress has the power " [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." One such "other Powe[r]" appears in Article II, [section] 2, cl. 2: "[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Read together, the two Clauses empower Congress to pass laws "necessary and proper for carrying into Execution ... [the] Power ... to make Treaties." (5) This power, he continues, is only to assist in making treaties, not to assist in the very different enterprise of enforcing them:
A treaty is a contract with a foreign nation made, the Constitution states, by the President with the concurrence of "two thirds of the Senators present." ... So, because the President and the Senate can enter into a non-self-executing compact with a foreign nation but can never by themselves (without the House) give that compact domestic effect through legislation, the power of the President and the Senate "to make" a Treaty cannot possibly mean to "enter into a compact with a foreign nation and then give that compact domestic legal effect."... Upon the President's agreement and the Senate's ratification, a treaty--no matter what kind--has been made and is not susceptible of any more making. (6) As a result, the power to carry into execution the treatymaking power includes things such as appropriating money and appointing officers to carry out negotiations. But "[o]nce a treaty has been made, Congress's power to do what is 'necessary and proper' to assist the making of treaties drops out of the picture. To legislate compliance with the United States' treaty obligations, Congress must rely upon its independent (though quite robust) Article I, [section] 8, powers." (7)
While this is a possible reading of the text, it does not appear to be the only one. Instead, treatymaking and treaty compliance might be seen as intertwined rather than (as Scalia sees them) entirely distinct. Treaties, as reciprocal agreements among nations, depend upon the willingness and ability of their signatories to abide by their provisions. If a nation is unable or unwilling to satisfy its obligations, and this is generally known by other nations, its treatymaking power will be greatly impaired. Other nations will be reluctant to contract with an unreliable partner.
This connection may be most easily seen by analogy to private contracts. In business relationships, a firm's reputation for honoring its contracts is essential to continued business. A firm that gains a reputation for breaching its existing contracts will have few opportunities to make new ones. As a result, the firm's willingness and ability to uphold existing contractual obligations is closely related to its opportunities to enter into new contractual relationships. In the treaty context, this effect is even more powerful, because there is no external enforcement mechanism comparable to courts' enforcement of private contracts. At least a firm entering into a contract with an unreliable partner has some hope that a court will enforce the contract (albeit after considerable time and expense). Treaty parties, in contrast, have no equivalent enforcement mechanism and so must place even greater value upon the reliability of their prospective treaty partner. (8)
As a result, it seems plausible to say that Congress's treaty enforcement carries into effect the President's treatymaking power, because absent reliable methods of enforcement, the power to make treaties as a practical matter would be greatly impaired. Scalia's opinion, although it describes Congress's power as "a power to help the President make treaties," (9) does not discuss this reading of the text.
Scalia offers no direct evidence that the Founding generation read the text as he does. (10) Context suggests that they would have embraced the broader view.
For the Framers, the need to establish trust among potential treaty partners was an immediate concern. Under the Articles of Confederation, the national Congress could enter into treaties but had little power to enact laws to enforce treaties; (11) for enforcement requiring domestic legislation, action by the states was needed. The states proved unreliable, repeatedly failing to take action to enforce treaties. (12) The most notorious of these difficulties involved the 1783 peace treaty with Britain, which provided that British creditors would not be prevented from enforcing and collecting prewar debts. (13) The states, of course, did interfere with British enforcement and collection, ignoring the...