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Treaty power before the Court: In Plain English

One of the fundamental principles of our government is that Congress does not have unlimited power; instead, it only has the power that the Constitution gives it.  For example, as we saw during the 2012 challenge to the Affordable Care Act, Congress cannot use its power to regulate trade between the states to justify requiring everyone to buy health insurance, though it can impose a tax that has essentially the same effect; it also cannot make it a federal crime to have a gun near a school.  But what about the provision of the Constitution that gives Congress (and the Senate in particular) the power to approve a treaty with other countries?  Can Congress then use that power to pass laws to put the treaty into effect in the U.S., even if it wouldn’t otherwise have had the constitutional power to do so?   That is the question before the Court this morning in Bond v. United States.  But that weighty issue comes to the Justices in an improbable story that seems more like an episode in a soap opera.  Let’s talk about the case of Carol Anne Bond, spurned spouse, in Plain English. 

In 2006, Bond learned that one of her best friends, Myrlinda Haynes, was expecting a baby.  Bond was thrilled for Haynes – at least until she learned that her own husband was the baby’s father.  Seeking revenge for that betrayal, Bond bought a chemical used to print photographs from; she also stole another chemical from the company where she worked as a microbiologist.  Over a period of several months, Bond applied the chemicals to Haynes’s car door, mailbox, and doorknob.  However, because Haynes easily spotted them, her only injury was a minor burn to her thumb.  With the help of video surveillance, Bond was caught, and she accepted responsibility for the crimes.

Sounds like a run-of-the-mill domestic dispute, right?  Under state law, Bond probably would have served somewhere between three months and two years in prison.  But a few months after her arrest, she was instead indicted on federal charges that she had violated the Chemical Weapons Convention, an international treaty aimed at eliminating the production and use of chemical weapons.  Nothing in the treaty itself prohibits individuals from making or using chemical weapons. Instead, the treaty is what is known as “non-self-executing”:  it requires the countries that sign it to enact their own laws to make that conduct illegal.  And Congress has enacted such a law, under which Bond was prosecuted.

Bond pleaded guilty to the charges against her, but she filed an appeal to challenge whether she could be tried in federal court at all.  She argued that because the Constitution did not give Congress the power to make conduct like hers criminal, the laws under which she was convicted infringed on the powers that the Constitution saves for the states.  Represented by former Solicitor General Paul Clement, Bond argues that even if Congress has properly ratified a “non-self-executing” treaty, that doesn’t automatically mean that any laws that it passes to put the treaty into effect are constitutional.  To the contrary, given how broad treaties and Congress’s power to enter into them can be, the courts need to put real limits on the kinds of laws that Congress can pass to implement them; otherwise, Congress could use its treaty power to override all kinds of state laws.  And this law, Bond emphasizes, applies especially broadly; she reminds the Court that at the oral argument during the case’s first go-round, “Justice Alito memorably remarked . . . [that] the government’s reading would render vinegar a chemical weapon when deployed to injure a goldfish.”

Bond also offers the Court another option if it doesn’t want to get drawn into deciding whether the chemical weapons treaty is constitutional:  it could read the statute as banning only the kinds of actual “chemical weapons” that the treaty was intended to target.  At the very least, then, the law should not apply to ordinary crimes like Bond’s.

Au contraire, says the federal government.  Although the laws implementing the treaty do carve out an exception for harmful chemicals used for a “peaceful purpose,” this is not one of those cases.  The use of a toxic chemical to try to hurt or kill someone is exactly the kind of conduct that the treaty and federal law ban.

The government also warns that, if the Court were to agree with Bond, it would make it harder for the government to negotiate and enter into treaties, because other countries would worry about whether the U.S. could keep its commitments.  In fact, it reminds the Court, the Constitution gave the federal government the power to enter into treaties precisely because the drafters wanted to be certain that the U.S. could guarantee compliance with its treaty obligations – something it was not able to do before the Constitution was ratified.

And, the government continues, because the treaty power is so important, it is not at all unusual that it might be able to use it to accomplish something that it might not otherwise be able to do.  Unlike other powers outlined in the Constitution, it points out, only the federal government can enter into treaties, which means that it must also be the only entity that can make sure that the country complies with those treaties.

How will these arguments fare at the Court?  Tune in after the oral argument, when the Justices will provide at least early reviews and we come back to cover them in Plain English.

Recommended Citation: Amy Howe, Treaty power before the Court: In Plain English, SCOTUSblog (Nov. 5, 2013, 6:08 AM),