The Treaty Problem: Understanding the Framers' Approach to International Legal Commitments.

• Author: Ford, Jade

INTRODUCTION

In 2014, when the Supreme Court decided Bond v. United States, it confronted an issue of structural federalism that had long vexed advocates of big and small government alike. (1) The issue stemmed from the tension between the broad, exclusive power the Constitution grants to the federal government to conclude international treaties and the limitations that the Constitution places on Congress's domestic authority vis-a-vis the states. (2) When these powers and limitations conflict, which should win out? How expansive should the federal government's treaty power be? For both champions and critics of international law, the Court's response in Bond (3) left much to be desired.

Admittedly, Bond offered the Court an unlikely set of facts through which to clarify the scope of the treaty power. After petitioner Carol Ann Bond was caught attempting to inflict chemical burns on her husband's pregnant mistress, she was charged with possessing and using a chemical weapon in violation of the federal statute implementing the international Chemical Weapons Convention (CWC). (4) Bond argued that charging her under the statute was unconstitutional because the statute exceeded Congress's enumerated powers and invaded powers reserved to the states under the Tenth Amendment. (5) Rather than definitively establish the proper scope of the treaty power in relation to Congress's enumerated powers, the Court sidestepped the issue, holding simply that Congress never intended the statute to extend to Bond's conduct in the first place. (6)

The questions of structural federalism left unresolved by Bond hold real-world significance in today's era of increasing global interconnectedness. As the petitioner and Justice Scalia emphasized in Bond, the scope and subject matter of international treaties have expanded dramatically since the Founding Era. (7) Whereas late eighteenth- and nineteenth-century treaties typically governed relations between nations, international agreements since the latter half of the twentieth century increasingly cover nations' treatment of their own citizens. (8) Without clearer guidance from the Court, it remains possible that the U.S. government could ratify and implement a treaty that abolished solitary confinement in state prisons, (9) imposed new criteria for state adjudication of child removals, (10) or otherwise infringed upon powers historically reserved to the states under the Tenth Amendment. As Justice Thomas warned in his Bond concurrence, "Given the increasing frequency with which treaties have begun to test the limits of the Treaty Power," the Court's opportunity to "address the scope" of that authority again will "come soon enough." (11)

To better understand the treaty power, scholars and litigants have drawn on historical understandings of the power's scope, with special emphasis on the views of the Framers. (12) Academics and practitioners alike have debated how the Framers conceived of the treaty-making power and whether they envisioned a power that would enable Congress to supersede contradictory state laws even in areas otherwise beyond its enumerated powers. (13) Unsurprisingly, the Framers disagreed on many issues. (14) Yet, as this Comment lays out, past analyses of the treaty power have overlooked certain foundational premises on which the Framers largely agreed. (15)

This Comment focuses on a heretofore underexplored factor driving the Framers' formulation of the treaty power: the threat of war inherent in all treaty violations at the time of the Founding. During this period, the international legal order permitted nations to wage war in response to treaty violations--and they often did. (16) As students of Hugo Grotius and Emer de Vattel, (17) the Framers were well aware that breaching a treaty could expose the fledgling United States to lawful attack, and that strict laws of neutrality would prevent allies from offering their support in the event of war. (18) These legal realities, combined with concerns over potent commercial and diplomatic side effects of treaties, compelled the Framers to advocate for a centralized treaty-making power and federal supremacy over state law in this context.

Our findings confirm that Framers on both sides of the states' rights debate acknowledged that treaties approved by the federal government should take precedence over state laws and interests. To the Framers, this design was critical to ensuring nationwide compliance with treaty obligations and thus avoiding war, diplomatic embarrassment, and commercial harm. Recognizing the broad sweep of this power, however, the Framers placed strict structural limits on who could wield it and how. They designed these structural safeguards to protect states from federal abuse of the treaty power, while still preserving the flexibility required for the national government to act effectively in international affairs. In sum, the Framers crafted a treaty power strong enough to tightly bind the states, but structurally safeguarded to ensure it would be utilized carefully, given the high stakes of international commitments.

Although much has changed since the Founding Era, (19) this Comment posits that the principles animating the Framers' formulation of the treaty power remain relevant in determining its scope today. One need not adhere to an originalist school of constitutional interpretation to appreciate the value of understanding the principles that undergirded the Constitution's text. (20) To the degree that those principles transcend era-specific considerations, they offer important guidance to treaty negotiators, legislators, and courts in interpreting the treaty power within a contemporary context. Even if the Framers' understanding of the treaty power does not conclude our constitutional inquiry, it offers a useful beginning.

This Comment proceeds in three Parts. In Part I, we discuss the Bond case and the parties' arguments concerning historical understandings of the treaty power. In Part II, we show that the parties overlooked a key consideration: the threat of war posed by treaty negotiations. Here, we examine key factors that shaped the original formulation of the treaty power, drawing on primary-source materials from the Founding Era. These sources demonstrate that the Framers, when drafting the Constitution and promoting it to the public, explicitly raised concerns that errant states could entangle the nation in war through treaty violations. We also identify structural considerations and contemporaneous controversies that reinforced the Framers' commitment to a centralized treaty power. Together, these factors drove the Framers to design a treaty power that would enable the federal government to proactively control the states' engagement with foreign nations, thereby protecting the nation from commercial infighting, diplomatic embarrassment, and--most importantly--war. Finally, in Part III we apply the factors that shaped the formulation of the treaty power to the open questions of Bond and extract principles that remain salient in interpreting the treaty power today.

i. BOND'S COMPETING UNDERSTANDINGS OF THE TREATY POWER

When the Supreme Court issued its opinion in Bond, it failed to resolve crucial questions of the treaty power's scope. (21) On the table were two competing accounts of the federal treaty power, set forth in the petitioner's and the government's briefs. Although both sides discussed historical forces that shaped the Framers' understanding, they overlooked a key factor that might have helped the Court resolve the constitutional question in Bond: the risk of war embedded in treaties at the time of the Founding. Because the Court did not answer the constitutional question in Bond, this issue is likely to resurface in the future. Understanding the Framers' motivations in crafting the treaty power thus remains critical to resolving finally these disagreements over its scope.

A core conflict between the litigants' positions in Bond centered on what the Framers valued more in crafting the treaty power: a limited federal government designed to protect states' rights and individual liberty, or a strong federal government capable of pursuing effective foreign policy to protect national interests and security.

On the one hand, the petitioner in Bond highlighted the Framers' intent to "create... [a] limited national government with enumerated powers addressed to matters of distinctly national and international concern." (22) According to Bond, if the government could lawfully charge her for a "decidedly local crime" under the federal statute implementing the CWC, there would be no limit to Congress's ability to "enact any legislation rationally related to [a] treaty," even if it infringed on states' authority or individual rights. (23) All that would be required to "render the Framers' careful process of enumerating Congresses] limited powers for naught" would be an "agreement of the President, the Senate, and a foreign nation." (24) The Framers could not have intended such an outcome, Bond argued, and instead must have assumed that subject-matter limits were inherent in the treaty power and the federal government's implementing authority. (25)

On the other hand, the government emphasized the Framers' desire to "empower[] the Nation to carry out its international legal commitments in furtherance of U.S. foreign policy and national security goals." (26) To maintain the balance of federal and state power, while still imbuing the federal government with sufficient flexibility to advance effective foreign policy, the Framers imposed structural limitations on treaties. (27) Such an arrangement, the government argued, "safeguarded the interests of the States by requiring that treaties be approved by two-thirds of the Senate, which they saw as the protector of State sovereignty." (28) Although the principles that influenced the treaty power's original development could have...