The old adage, “bad facts make bad law,” threatens to reassert itself in an especially damaging fashion in Bond v. United States, a case now before the Supreme Court in which oral argument was held on Tuesday.  As many readers will already be aware, the bad facts are a tragic love triangle in which a betrayed wife used chemical agents in an effort to harm her husband’s paramour, followed by a federal prosecution against her for violation of the Chemical Weapons Convention and its implementing legislation.  The legal question presented is, in essence, whether the treaty power authorizes the federal government to make the spurned wife’s acts a federal crime.  The bad law that may result is the development of new constitutional doctrine restricting the scope of the treaty power in ways that are not only contrary to the Founders’ deliberate design but to constitutional understandings, Supreme Court precedents, and treaty practice over the course of more than two centuries.  The potential for the disruption of core U.S. foreign policy interests is significant.  (Disclosure:  I have not only written extensively about the underlying issues, but also participated in writing an amicus brief filed in the case).

The recent oral argument has naturally provoked speculation about how the Court will ultimately decide the case.  In fact, the issues are complex and multifarious, leaving the Court many paths to follow, especially if it intends, as most observers of the argument expect, to overturn the conviction.  Let me comment on one such path, which though it may not be anyone’s favored approach, nevertheless offers the potential for an overlapping consensus in which all points of view can take some comfort.

During the argument, the possibility of applying a plain statement rule before interpreting treaties to require regulation of subjects traditionally regulated by the states was briefly discussed.  Applying such an approach in Bond would provide a persuasive basis for concluding that the treaty does not obligate the United States to impose penal sanctions on individuals, like Bond, who engage in private acts of violence, devoid of political or military content but using a prohibited chemical substance.  On any plausible account, such a case is, at best, marginal to the main aims of the Convention, and, although the broad language of the treaty might nevertheless be read to cover it, requiring a clear statement of any such intention would obviate unnecessary and perhaps inadvertent intrusions on the ordinary realm of state authority.

Such an approach has considerable merit.

  1. It would enable the courts to ensure that U.S. treaty practice remains sensitive to the autonomy of the states.
  2. At the same time, it would avoid imposing limits on the scope of the treaty power that could seriously compromise U.S. foreign policy interests and that, for this reason, were decisively rejected at the Founding and have been rejected ever since.
  3. It is consistent with traditional Supreme Court practice, which has on several occasions narrowly interpreted treaty language to avoid interference in sensitive matters falling within the ordinary jurisdiction of the states.  See, e.g., Compagnie Francaise de Navigation a Vapeur v. Louisiana State Bd. of Health, 186 U.S. 380, 393-95 (1902).  Early in the 20th Century, Edward Corwin described this practice and then noted that it obviated any possible justification for imposing more rigid constitutional restraints on the scope of the treaty power.  With deliberate understatement, he observed:  “With these various impediments affixed to it, the treaty-power, it is submitted, is quite adequately restrained in relation to the police powers of the States.  The disposition of us Americans, however, is to put all our reliance upon constitutional limitations.  This propensity has not always produced the most happy results. . . .”  Edward S. Corwin, National Supremacy: Treaty Power vs. State Power 306-07 (1913).
  4. Finally, it would avoid drawing an arbitrary distinction between federal power to make treaties and to implement them.  When a valid treaty clearly imposes an obligation on the United States, the latter must necessarily have power to implement the obligation.  It can never make sense to empower the federal government to enter into treaty obligations that it is powerless to enforce.  However, if the treaty fails clearly to impose such an obligation, and the obligation if imposed would trench deeply into the realm of state authority, then the treaty would be interpreted to avoid such a result, and any implementing legislation that nevertheless sought to impose it as a matter of domestic law would not be “necessary” under the Necessary and Proper Clause.

It may be that as the Justices consider the case more deeply, it will become evident to a majority that resolving the case on this basis will best reconcile the competing interests at stake.  From a practical perspective, it would achieve considerable protection to the states from the reach of the treaty power, much as the clear statement approach of Gregory v. Ashcroft, 501 U.S. 452 (1991), has powerfully served similar purposes in other federalism contexts.  At the same time, it would avoid a blunderbuss entry by the Court into the field of foreign affairs that would threaten to complicate, if not seriously disrupt, the ability of the federal government to carry out its core responsibilities for the nation’s security and foreign policy interests.  Finally, it would enable those Justices who are concerned about the federalism implications of the treaty power to avoid rendering a decision sharply in tension with the text of the Constitution, the understandings of the Founders, and two centuries of precedent.  Even if some feel that the need to tame the treaty power could justify such a decision, it certainly could not do so in face of this simple, albeit more modest, alternative.