Seeking a middle ground in Bond v. United States
Michael D. Ramsey from the University of San Diego Law School says the case of Bond v. United States will present the Supreme Court with the task of accommodating federalism without undermining national foreign policy.
The case of Bond v. United States, set for argument before the Supreme Court on Tuesday, November 5, is a clash of extremes. The U.S. government claims it can criminalize any local conduct, no matter how lacking in national or international implications, so long as it can point to a treaty the conduct possibly effects.
Thus it prosecuted Carol Anne Bond for a quintessentially local crime: her misconceived attempt to injure a romantic rival by putting toxic chemicals on the rival’s door and mailbox.
According to the government, the Chemical Weapons Convention, an international treaty, requires the United States to regulate all harmful misuses of chemicals, even of the most local and private nature, and the Constitution places effectively no limits on Congress’ ability to do so.
If that’s right – especially with vague and open-ended treaties increasingly regulating matters within nations – it’s hard to see any limits on Congress’ regulatory power, even as to matters beyond the already broad scope of the commerce clause. James Madison’s well-known statement in Federalist No. 45, that under the Constitution the powers of the national government are “few and defined,” seems wholly inapt if the national government can without limitation expand its regulatory power by treaty.
However, Bond and her supporters would impose limits on national treaty power that are hard to square with the Framers’ desire for a unified national foreign policy. They argue that Congress lacks power to implement treaties once they are adopted unless the treaty happens to involve powers of Congress expressly granted in Article I.
But Congress also has power under Article I to make laws “necessary and proper for carrying into Execution … other Powers vested by this Constitution in the Government of the United States…” The power to enter into treaties, granted to the national government in Article II, is an empty one if Congress cannot assure the United States keeps its treaty promises. This was a central concern of the Constitution’s framers, who had experienced the foreign policy frustrations of the Article of Confederation, under which Congress lacked any way to assure compliance with treaty obligations.
A need for middle ground
As a result, both leading arguments seem unattractive. One side would unduly undermine federalism; the other would unduly undermine national foreign policy. This suggests the need for middle ground. And Bond has two further arguments, both of which let Bond win and preserve the basic structure of federalism without threatening the national government’s treaty power.
First, it’s obvious that Bond’s actions aren’t matters of international concern. No one outside the United States cares about (or has even heard of) the case or its outcome, nor would they care about even a profusion of similar cases. The Chemical Weapons Convention, as its name implies, isn’t aimed at such offenses – it’s about the mass use of chemical weapons to attack armies or populations.
As its preamble says, its goals are “effective progress toward general and complete disarmament … including the prohibition and elimination of all weapons of mass destruction.” It is, in short, an arms control treaty.
Consistent with this role, its main provisions (set forth in Article I) prohibit governments from “us[ing] chemical weapons” and from related activities such as “engage[ing] in military preparations to use chemical weapons.” Only as a secondary matter (in Article VII) does it require nations to “prohibit any natural and legal persons … from undertaking any activity prohibited to a State Party under this Convention.”
It seems unlikely, then, that the treatymakers intended to make local and isolated misuse of common chemicals by private parties an international offense. Treaties, we should assume, typically address matters of international, not purely local, concern.
With this in mind, the treaty’s text suggests that its scope is at best ambiguous. It is not clear that the treaty prohibitions quoted above reach purely private activity, as opposed to actions by individuals done on behalf of or in conjunction with governments. Moreover, while the treaty defines “chemical weapon” very broadly to include all harmful chemicals, it expressly excludes (Article II, Section 9) chemicals used for “peaceful purposes.” While “peaceful” might mean “non-violent,” it also might mean “non-warlike.”
In the treaty’s context, the latter seems at least as plausible as the former. The treaty’s concern is with governments, or non-governmental actors with the connivance of governments, producing and deploying chemical weapons to be used in combat or terrorism. That is, its concern is the “war-like” use of chemicals, a concern reinforced by the treaty’s repeated references – including in its title – to chemical “weapons” (as opposed merely to “chemicals”). To be sure, one might read the Convention’s vague and general language to reach all private misuse of chemicals – including, as Justice Alito suggested incredulously in an earlier round of this case, if Bond had maliciously put vinegar in her rival’s goldfish bowl. But the language does not compel this reading, and its context strongly suggests a more limited scope.
How the Court could read the case
Especially given the federalism implications, the Court might reasonably say that it will read ambiguous treaties to address only matters of international concern. Here, that would not appear to reach Bond, or others in her position, whose actions have no possible international repercussions. And if her actions do not implicate the treaty, Congress cannot claim treaty enforcement as a basis of its constitutional power.
This approach has the strong advantage of not constitutionalizing the limits placed on the treatymakers or Congress. If the Court reads the treaty too narrowly, the treaty parties can amend it to be clear. If the treaty is clear, we can be confident that the Senate intends to approve treaty provisions that reach what appears to be purely local conduct.
The supermajority check on treatymaking in the Senate assures that approval is unlikely unless the local activity actually raises a serious international problem. In the present case, however, where the treaty and its context raise ambiguities, we lack confidence in the Senate’s understanding, and thus in the supermajority protection. Perhaps the supermajority did not intend to approve such an intrusion into local affairs. In that situation, it seems reasonable to ask the treatymakers to express themselves clearly.
A second approach is to focus on Congress’ power under the Necessary And Proper clause. Let’s assume the treaty obligates the United States to prohibit Bond’s conduct, and let’s assume the Necessary And Proper clause authorizes Congress to enforce some treaties through national criminal law. Does the clause allow Congress to enforce this treaty, in this way, at the national level (rather than leaving enforcement to the states)?
Quite arguably it does not. There is no plausible argument that U.S. states under enforce local private misuse of chemicals in ways that raise international concerns. (Even if the state declined to prosecute in this case, the lack of any imaginable international concern shows that no country would find the United States in breach of its treaty obligations if Bond went free). Indeed, the treaty itself contemplates enforcement at the local level, saying (in Article VII) that nations should implement it “in accordance with [their] constitutional processes,” which in the United States include federalism.
Congress’ intervention would be “necessary” (even in a relaxed sense of necessary) only if there is some reason to think states can’t do the job. Here, the job to be done is to meet the United States’ treaty obligations to the satisfaction of our treaty partners. There is no suggestion that U.S. states have not or cannot do this. Every state prohibits and prosecutes the harmful misuse of chemicals. It would be a different case if the national government had undertaken international obligations to which the states were fundamentally opposed. But the supermajority requirement in the Senate assures that this is unlikely to happen. (The pending U.N. Arms Trade Treaty, which may well contain provisions states fundamentally oppose, is correspondingly very unlikely to gain the requisite supermajority).
As with the first option, this approach reconciles federalism and national foreign policy. Congress can implement treaties by enacting criminal law – even beyond its otherwise enumerated powers – if action at the national level is (as the Constitution says) necessary. But federalism requires a plausible showing of necessity. That simply hasn’t been made here.
In sum, there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.
Michael D. Ramsey, Professor of Law at the University of San Diego Law School, is the author of The Constitution’s Text in Foreign Affairs (Harvard Univ. Press 2007) and co-editor of International Law in the U.S. Supreme Court (Cambridge Univ. Press 2011).
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