(This is another post in our series, Looking Back at the U.S. Supreme Court’s 2013 Term.)
Continuing with this blog’s coverage of the recently concluded Supreme Court term, I’ll offer a few thoughts on the decision in Bond v. United States, which addressed a challenge to a statute that Congress passed in 1998 to implement the Chemical Weapons Convention (“CWC”). Most have heard about the underlying facts: After finding out that her husband was the father of her best friend’s soon-to-be-born child, Carol Anne Bond tried to poison the friend with 10-chloro-10H-phenoxarsine and potassium dichromate. This plan didn’t work, but the authorities found out about it and prosecuted Ms. Bond under 18 U.S.C. § 229(a) for possession and use of a “chemical weapon.” Bond then entered a conditional guilty plea that preserved her right to appeal and, after a lot of other litigation, made two arguments before the Supreme Court. First, she contended that Section 229(a) doesn’t apply because she didn’t use 10-chloro-10H-phenoxarsine and potassium dichromate as “chemical weapons” within the meaning of the statute. Second, she argued that the statute is invalid even if it applies because it exceeds the enumerated powers of Congress and intrudes upon powers that the Tenth Amendment reserves for the states.
This case drew a lot of attention from people who care about U.S. foreign relations law because Bond’s second argument asked the Court to overrule Missouri v. Holland—an important Justice Holmes opinion holding that the principle of federalism does not constrain federal treaties or their implementing legislation. The longstanding effect of Holland has been that while federalism likely precludes Congress from passing an ordinary statute to prohibit, for example, states’ use of the death penalty, the President and Senate could enter into an international treaty containing such a prohibition, and the House and Senate could pass any necessary implementing legislation to ensure that the treaty becomes binding upon state officials. In this sense, Holland has given the federal government greater freedom to enter into international agreements; without the decision, it would’ve been more difficult for the United States to join the human rights conventions and various other multilateral treaties that have emerged since World War II. Bond looked like a high-stakes decision in light of the possibility that it would invalidate Holland and curtail treatymaking.
Ultimately, however, the Bond majority expressly chose to avoid ruling on the Holland question. Instead, the Court held that Section 229(a) didn’t apply because the statutory language was too ambiguous to overcome a presumption that Congress ordinarily intends to honor the reserved powers of the states. Professor O’Hear has already offered a helpful analysis on that holding and its implications for the field of criminal law. In the remainder of this post, I’ll raise two points from the perspective of U.S. foreign relations law.
First, given the longstanding precedent of Holland, it strikes me as strange for the Court to apply a federalism canon to interpret Section 229(a). The statute, after all, implemented the CWC, and the main point of Holland has been that federalism does not constrain implementing legislation. Unsurprisingly, none of the other cases the majority cited to justify its approach involved implementing legislation for a treaty. Bond thus divined congressional intent with respect to Section 229(a) based on a constitutional principle that was unequivocally and categorically inapplicable at the time Congress drafted the statute. It is implausible to think that the canon could reliably identify congressional intent in such circumstances.
The second point I want to make is that Bond will affect treatymaking even though it declined to overrule Holland. The practical consequence of the Court’s decision is to require Congress to include in future implementing legislation ultra-clear evidence of any intent to have the legislation operate within a traditional domain of state governments. Satisfying this requirement will likely prove challenging insofar as federalism is a politically sensitive issue. Going forward, U.S. officials will either have to risk entering into non-self-executing treaties for which Congress may decline to pass implementing legislation with Bond-compliant language, or enter into self-executing treaties that do not depend on implementing legislation for their domestic effect.