Tomorrow the Supreme Court will hear argument in Bond v. United States, a case about a conviction under a statute that purports to implement a chemical weapons treaty. The arguments at the Court raise basic questions about the scope of the treaty power and the scope of Congress’s ability to implement that treaty power. While I have been following the case, I continue to find the issues rather difficult and not to be wholly satisfied with either side’s resolution of them.
When the federal government wants to make domestic law through the treaty process, there are at least three ways it might try to do so:
1, the Senate and the President can make a self-executing treaty, which will be the “supreme law of the land” under the Supremacy Clause.
2, the Senate and the President can make a non-self-executing treaty, which requires domestic implementation; Congress can then pass a statute implementing that treaty.
3, the Senate and the President can make a non-self-executing treaty, which requires domestic implementation; the states can then pass statutes implementing that treaty.
Missouri v. Holland, and the prosecution in Bond, feature an example of category 2. Co-blogger Nick has argued that the permissible scope of category 2 is quite narrow. (That argument is contested here.) But I find it hard to fully assess the scope or relevance of category 2 without knowing more about the scope of category 1. (Everybody seems to agree that category 3 is permissible.)
If the scope of the self-executing treaty power (#1) is very broad, then it may not matter very much if the scope of the implementing power (#2) is very narrow — it might matter for the outcome of Ms. Bond’s case and various implementing statutes currently on the books, but not so much going forward. (To be sure, it would not be totally irrelevant for reasons that Nick discussed in this post.)
In any event, category 2 may also be broader in one other respect — a statute passed under category 2 can be upheld regardless of what one thinks about the treaty power, if it is justified by some other enumerated federal power. Indeed, Marty Lederman argues that the Court could uphold Bond’s conviction on Commerce Clause grounds without getting into the treaty questions at all, since she purchased one of the chemicals on the internet, and she smeared both of them on a car. The government’s brief also leads with the Commerce Clause. On the other hand, Bond’s reply brief argues that the government affirmatively disavowed reliance on the Commerce Clause so it is out of the case.
All of this makes me think that some of the most interesting questions about the scope of federal power may not be resolved by this case.