Bond v. United States and the Future of the Treaty Power

By Thomas Dollar

The strange case of Carol Anne Bond returned to the Supreme Court in November. While the facts of the case are straight out of Jerry Springer, the outcome of Bond v. United States could determine the future of the United States’ power to enter into and enforce treaties. The story began when Ms. Bond discovered that her husband had impregnated her soon-to-be-ex-best friend, Myrlinda Haynes. Bond sought revenge—against Ms. Haynes, naturally. A trained microbiologist, Ms. Bond stole some highly-toxic powder from her employer, the Rohm and Haas chemical company. She spread this powder on the doorknobs and mailbox of Ms. Haynes’s suburban Philadelphia home in the apparent hope that the chemicals would cause Ms. Haynes severe burns. Ms. Haynes reported the suspicious powder to local authorities, who then tested it for cocaine. When the tests returned negative, the local police lost interest in the matter.

It was only after Ms. Haynes notified the Postal Service that federal authorities launched an investigation. Ms. Bond was indicted in the Eastern District of Pennsylvania and convicted of violating 18 U.S.C. § 229(a)(1), a criminal statute implementing the United States’ treaty obligations under the 1993 Chemical Weapons Convention. Ms. Bond appealed her conviction, arguing that § 229 exceeded Congress’s authority to enforce treaties.[1]

The Constitution empowers the President to sign treaties, which must be approved by a two-thirds majority of the Senate.[2] A treaty may be self-executing by its own terms. The whole Congress may also enforce and give effect to a non-self-executing treaty through the Necessary and Proper Clause.[3] Treaties validly enacted under the Constitution are the “supreme Law of the Land,” and preempt contrary state laws.[4] Does this Treaty Power give the Senate and President—perhaps even to the exclusion of the House—the power to enact laws Congress could not otherwise enact? In 1920, the Supreme Court attempted to address the meaning and limits of the Treaty Power in Missouri v. Holland,[5] a short opinion that has since ruffled many feathers.

At the time, a fashion for extravagant plumage on ladies’ hats and table settings was leading some migratory-bird species to the brink of extinction. The trouble with migratory birds is that they migrate, with no apparent regard for jurisdictional boundaries or states’ authority. New York might enact a law to limit the taking of swans, but New York authorities would be helpless to protect the bold fowl that was foolish enough to fly into the New Jersey Meadowlands. Enter Congress, which in 1913 enacted the Weeks-McLean Act. Weeks-McLean empowered federal regulators to limit the taking of migratory birds and declared these birds to be “within the custody and protection of the Government of the United States . . . .”[6] But Weeks-McLean had a major shortcoming: it was not at all clear in 1913 that Congress had the authority to enact such a law. Under the common law, migratory birds belonged to the states, and the Commerce Clause had not yet evolved to extend Congress’s authority to matters beyond the direct effects of interstate trade.[7] Congress solved this constitutional predicament by invoking the Treaty Power. President Wilson signed the Migratory Bird Treaty[8] with the United Kingdom, which at the time governed Canada’s foreign affairs. After the Senate ratified the treaty, the full Congress gave it force through the Migratory Bird Treaty Act of 1918.[9]

This is the statute that the Court confronted and upheld in Holland. Missouri argued that the Necessary and Proper Clause gave no additional power to Congress to regulate intrastate activity than could be exercised under the Commerce Clause—even when executing a validly ratified treaty. Justice Holmes, writing for the Court, shot this argument down and declared that, while “[a]cts of Congress are the supreme law of the land only when made in pursuance of the Constitution . . . , treaties are declared to be so when made under the authority of the United States.”[10] The Court thereby appeared to hold that the Treaty Power extends beyond the powers enumerated in Article I to encompass all matters that modern nation states might deal with. These implications caused a fair amount of consternation on the political right. A constitutional amendment was considered at one time that would have restricted the Treaty Power to only those matters over which Congress would otherwise have the power to legislate.[11] While this amendment failed in the Senate, the Supreme Court clarified that treaties could not abrogate the Bill of Rights.[12]

By mid-century, Congress’s Commerce Clause powers had expanded greatly since the time of Holland. The Supreme Court abandoned its pre-New-Deal formalism[13] and freed Congress to address national concerns without judicial interference.[14] The Court also construed more broadly Congress’s power to enforce the Reconstruction Amendments.[15] Given this shift by the Court, Congress simply had no need to use the Treaty Power as a basis for domestic legislation. This era of judicial deference to Congress ended in 1995, when the Court struck down the Gun Free Schools Zones Act in United States v. Lopez.[16] Congress had enacted the law without really bothering to explain how it related to interstate commerce.[17] To the Court’s new conservative majority, it looked too much like Congress exercising the general police power.

Five years later, the Court took another step back toward its old formalistic view of federalism in United States v. Morrison. [18] Morrison struck down 42 U.S.C. § 13981, a part of the Violence Against Women Act (VAWA) that created a federal cause of action over “crimes of violence motivated by gender.” Unlike in the Gun Free School Zones Act, here Congress compiled a “mountain of data” to demonstrate that sexual- and gender-based violence in the aggregate had substantial negative effects on interstate commerce.[19] Congress also found that a “pervasive bias” existed in state courts to deprive victims of gender-based violence of their equal protection of the laws.[20] These constitutional bases would have been sufficient for the McClung and Morgan Courts, but they were not sufficient for the five conservative justices in 2000. The Court invented a new rule: because gender-based violence was not itself an economic activity, its aggregate effects would be ignored for Commerce Clause purposes. States’ failure to provide a remedy to victims was also not enough to justify congressional action under the Fourteenth Amendment, even if the effect of that failure was to deny victims their equal protection.

“If the allegations are true, no civilized system of justice could fail to provide [the victim, Christy Brzonkala,] a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States,”[21] wrote Chief Justice Rehnquist. Of course, Ms. Brzonkala only filed suit under VAWA because the officials at her Virginia state university had failed to take her sexual-assault claim seriously.

Stripped of its Commerce Clause and Fourteenth Amendment powers,[22] could Congress ever re-enact a statute like the part of VAWA the Court struck down? The Treaty Power may provide an open door—one that the conservative justices look eager to slam shut in Bond. The U.S. is a signatory to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), although the Senate has never ratified it. CEDAW requires parties to “pursue by all appropriate means and without delay a policy of eliminating discrimination against women . . . .”[23] If the Senate ever ratified CEDAW, Holland suggests that Congress could then enact a new VAWA as a necessary and proper means for meeting the treaty’s obligations. At oral argument in Bond, Justice Alito worried about this possibility. Solicitor General Donald Verrilli did little to mollify him and reiterated the principle of Holland: “I think the question in that case would be whether the treaty is a valid exercise of the Treaty Power.”[24]

While no one contests that the Chemical Weapons Convention is itself valid, even Justices Breyer and Ginsburg expressed concern that, without some limiting principle, Congress could use the Treaty Power to do whatever it wanted. But the limiting principle might be in the Treaty Power itself, which demands the cooperation of the President and two thirds of senators. Since treaties are usually non-self-executing, the full Congress must then enact enabling legislation through the normal process. These are no small obstacles, and as a result the U.S. has failed to ratify treaties that nearly every other nation on earth has.[25] The justices hypothesize outrageous and absurd consequences of an unrestricted Treaty Power, when in reality getting any treaty enacted is a difficult feat. The only question is how restrictive the Court decides to be in policing the elected branches’ prerogative. Will Bond do to the Treaty Power what Morrison did to the Commerce Clause and Fourteenth Amendment Powers? The justices’ questions at oral argument suggest as much.

There’s a sad symmetry between the two cases. As Justice Ginsburg noted,[26] the saga of Carol Bond and Myrlinda Haynes never would have reached the Supreme Court if Pennsylvania authorities had taken Ms. Haynes’ pleas for help seriously. If federal actors usurped the state’s police power, it is only because the state had failed to exercise it. The justices may once again conclude that under our federal system, a victim’s remedy must be provided by her state, and not by the United States.

Thomas is currently a 2L at NYU School of Law. He is a Staff Editor on the Review of Law & Social Change and Co-Chair of NYU Law Students for Reproductive Justice.

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[1] See United States v. Bond, 581 F.3d 128, 132 (3d Cir. 2009).

[2] U.S. Const. art. II, § 2.

[3] See, e.g., Medellin v. Texas, 552 U.S. 491, 505 (2008).

[4] U.S. Const. art. VI.

[5] 252 U.S. 416 (1920).

[6] A Guide to the Laws and Treaties of the United States for Protecting Migratory Birds, Migratory Bird Program, U.S. Fish & Wildlife Serv. (Apr. 11, 2011), http://www.fws.gov/migratorybirds/regulationspolicies/treatlaw.html.

[7] See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918); United States v. E.C. Knight Co., 156 U.S. 1 (1895).

[8] 39 Stat. 1702 (1916).

[9] 40 Stat. 755 (1918) (codified as amended at 16 U.S.C. §§ 703–12 (2012)).

[10] 252 U.S. at 433–34.

[11] See Nelson Richards, The Bricker Amendment and Congress’s Failure to Check the Inflation of the Executive’s Foreign Affairs Powers, 1951–1954, 94 Cal. L. Rev. 175, 178 (2006), available at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1277&context=californialawreview.

[12] Reid v. Covert, 354 U.S. 1, 16–17 (1957).

[13] Wickard v. Filburn, 317 U.S. 111 (1942).

[14] See, e.g., Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964) (holding that Congress’s Commerce Power extended to banning racial discrimination in accommodations); Katzenbach v. McClung, 379 U.S. 294 (1964) (holding that Congress’s Commerce Power extended to banning racial discrimination in small restaurants).

[15] Katzenbach v. Morgan, 384 U.S. 641 (1966) (holding that Congress could ratchet up civil-rights guarantees beyond what the Court had found to be required under the Constitution).

[16] 514 U.S. 549 (1995).

[17] Id. at 561.

[18] 529 U.S. 598 (2000).

[19] 529 U.S. at 634 (Souter, J., dissenting).

[20] Id. at 619–20.

[21] Id. at 621.

[22] Since Morrison, the Court furthered narrowed the Commerce Power in National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012). But see Gonzales v. Raich, 545 U.S. 1 (2005) (upholding the application of the federal Controlled Substances Act against intrastate use of medical marijuana). Congress’s power to enforce the post-Civil-War amendments was also circumscribed in Shelby County v. Holder, 133 S. Ct. 2612 (2013).

[23] Convention on the Elimination of all Forms of Discrimination Against Women art. 3, opened for signature Dec. 18, 1979, 1249 U.N.T.S. 13, available at http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article3.

[24] Oral Argument at 47–48, Bond v. United States, No. 12-158 (U.S. Nov. 5, 2013), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-158_8m58.pdf.

[25] See Jo Becker, Dispatches: Will US be Last to Endorse Child Rights Convention?, Human Rights Watch (Nov. 26, 2013), http://www.hrw.org/news/2013/11/26/dispatches-will-us-be-last-endorse-child-rights-convention (noting that only the United States and Somalia have failed to ratify the Convention on the Rights of the Child).

[26] Oral Argument at 10–11, Bond v. United States, No. 12-158 (U.S. Nov. 5, 2013), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-158_8m58.pdf.