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Academic highlight: Questioning Congress’s legislative authority to implement treaties

Bond v. United States is back before the U.S. Supreme Court, and this time it raises a question that has long interested academics:  What are the limits on Congress’s power to implement treaties?  Missouri v. Holland, decided in 1920, held that Congress could enact legislation implementing a treaty even if such legislation was otherwise outside the scope of its Article I, Section 8 authority.  The decision is now canonical, and it has been widely accepted by most academics and followed by courts.  Then, in a 2005 article in the Harvard Law Review, Professor Nicholas Quinn Rosenkranz challenged Missouri v. Holland’s rationale and asserted that it should be overruled.  His arguments are now front and center before the Court in Bond.

The facts of Bond are unusually colorful.  After Carol Anne Bond’s husband had an affair, Mrs. Bond sought revenge by sprinkling toxic chemicals around the car and mailbox owned by the woman involved.  Prosecutors charged her with violating a federal statute implementing the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (also known as the “Chemical Weapons Convention”), to which the United States is a signatory.  Mrs. Bond argued that Congress lacked the authority to criminalize her conduct, asserting that the statute is a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.”  The Third Circuit rejected this argument, concluding that under Missouri v. Holland Congress may legislate to implement a valid treaty “regardless of whether Congress would otherwise have the power to act or whether the legislation causes an intrusion into what would otherwise be within the state’s traditional province.”  The Third Circuit noted Professor Rosenkranz’s counter-arguments (which were also raised in an amicus brief by the Cato Institute), but concluded that Holland is “binding precedent” and thus “forecloses this line of reasoning.”

In his article, Rosenkranz contends that Missouri v. Holland is at odds with the fundamental constitutional principle that the federal government can only act within its enumerated powers.  He musters textual, structural, and historical arguments for his view, and contests Professor Louis Henkin’s reading of the Constitution’s drafting history, which both Henkin and the Supreme Court have cited in support of Holland’s rationale.  As Rosenkranz observes, the question of Congress’s power to implement treaties has taken on added importance now that the Supreme Court is more actively policing the boundaries of Congress’s power.  Bond’s lawyers also make this point in their opening brief in the Supreme Court, in which they argue that if Holland  is not overruled or limited, Congress could use treaties to perform an end run around carefully crafted federalism limits on its authority to legislate.

Not everyone agrees with Rosenkranz, however.  Professors David Golove, Marty Lederman, and John Mikhail have filed an amicus brief in Bond contesting Rosenkranz’s view that Congress’s powers to implement treaties are so limited.  Back in January of this year, Rosenkranz and NYU Professor Rick Pildes debated these questions at a Federalist Society meeting and then in a series of blog posts.  There, Pildes raised the interesting point that even if Rosenkranz is correct, the Senate and President together could choose to make a treaty self-executing, which would enable the federal government to establish law on traditionally local matters without resorting to legislation at all.

Whatever the result in Bond, Rosenkranz has certainly succeeded in “launch[ing] a new debate” about the scope of Congress’s power to implement treaties.

Recommended Citation: Amanda Frost, Academic highlight: Questioning Congress’s legislative authority to implement treaties, SCOTUSblog (Aug. 21, 2013, 10:57 AM),