In its decision yesterday in Bond v. United States, the Supreme Court carefully avoided addressing either the constitutional scope of the treaty power or the scope of Congress’s constitutional authority to implement treaties under the Necessary and Proper Clause. The decision is nevertheless important in holding that a federalism-based clear statement requirement, which was originally developed in the context of purely domestic legislation, applies even to legislation implementing a treaty. It also signals more generally (as had earlier decisions such as Medellín v. Texas) that the Court will be attentive to federalism values even in cases involving foreign affairs. In this post, I will highlight both a process point in support of the Court’s clear statement approach and a potential drawback of that approach. I conclude with some miscellaneous observations about the decision.

Bond v. United States had long been anticipated as the case in which the Supreme Court would revisit Missouri v. Holland (1920) and limit Congress’s authority to implement treaties. In the event, the Court did nothing of the kind. Only three Justices would have recognized judicially enforceable limits on the Treaty Power (Thomas, joined by Scalia and Alito, concurring in the judgment), and only two would have adopted the crabbed reading of the Necessary and Proper Clause advocated by Professor Nicholas Rosenkranz (Scalia, joined by Thomas, concurring in the judgment).

As many readers are aware, Bond v. United States is a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.” This resolution betrays the Court’s ambivalence about the appropriate limits of the treaty power and about the Court’s own capacity to define those limits.