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On the question of justiciability, whether a person indicted for violating a federal statute has standing to challenge the law on grounds that Congress exceeded its powers under the Constitution, intruding upon the sovereignty and authority of the states in violation of the 10th Amendment. The Supreme Court ruled on this issue in the first Bond case in 2011. See the 2011 opinion in the "Court Below" section.
On the question of the merits of the case, whether a federal statute, enacted by Congress to implement an international treaty, can be used to charge American citizens with what otherwise would be purely local crimes. In other words, whether the president, in exercising his power to make treaties with the consent of the Senate, can increase Congress’s enumerated powers to legislate on domestic matters. The Court ruled on this issue in the second Bond case in 2014.
Clifford and Carol Anne Bond had been married for 14 years when Mrs. Bond found out that her husband had impregnated her best friend. Telling her husband’s illicit lover that she would make her life a “living hell,” Mrs. Bond, a laboratory technician, stole an arsenic-based chemical from her worksite and purchased some potassium dichromate to exact her revenge. Both can cause death if ingested or exposed to a person’s skin at sufficient levels. The jilted wife mixed the chemicals together, and over several months she repeatedly spread the compound on the doorknob, car door, and mailbox of her former best friend. The victim suffered a minor chemical burn. Inspectors set up surveillance cameras, which led to Mrs. Bond’s arrest.
In 1997 the president had signed the Chemical Weapons Convention Treaty, an international arms treaty that outlawed the production, stockpiling, and use of chemical weapons. Because treaties are not self-actuating, in pursuance of that treaty Congress passed the Chemical Weapons Convention Implementation Act of 1998 (CWCIA) and created a federal statute that made it a federal crime for a person to use or possess any chemical weapon, with severe penalties for infractions. The United States charged Bond under the CWCIA.
The Court Below
The District Court for the Eastern District of Pennsylvania convicted Bond of two counts of possessing and using a chemical weapon (among her other state and federal charges). After sentencing she appealed to the Third Circuit Court of Appeals, raising a 10th Amendment challenge to the chemical weapons charges. The Third Circuit ruled that Bond lacked standing to make such a claim. She was a private party, the court ruled, absent the involvement of a state or its officers. See opinion here:
United States v. Bond, 581 F.3d 128 (3d Cir., 2009)
Bond appealed to the Supreme Court, which remanded the case back to the Third Circuit with instructions to recognize Bond’s standing. See opinion below:
Bond v. United States, 564 U.S. 211 (2011)
The Third Circuit then recognized Bond’s standing and ruled on the merits of the case, confirming Bond’s conviction under the CWCIA. See opinion below:
United States v. Bond, 681 F.3d 149, 162 (3d Cir., 2012)
Bond again appealed to the Supreme Court, which addressed the merits of the case. See opinion below:
Bond v. United States, 134 S. Ct. 2077 (2014)
Question before the Court
- “Do the Constitution's structural limits on federal authority impose any constraints on the scope of Congress' authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government's treaty obligations?
- “Can the provisions of the Chemical Weapons Convention Implementation Act, codified at 18 U.S.C. § 229, be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court's decision in Missouri v. Holland?”
CCJ submitted a joint amici curiae with the Cato Institute in support of petitioner Bond.
The ultimate issue in this case is understanding the proper conjunction between the president’s constitutional power “by and with the Advice and Consent of the Senate, to make Treaties” and Congress’s constitutional power to “make all Laws which shall be necessary and proper for carrying into Execution” its enumerated powers. The president cannot, by entering into a treaty, thereby increase Congress’s power under the Necessary and Proper Clause.
Congress’s legislative power can be increased only by constitutional amendment, not by treaty. The Supreme Court in Missouri v. Holland (1920) erroneously held that Congress can enact some statutes, given a treaty. This is contrary to the understanding that Congress’s power is limited to subjects enumerated in the Constitution. By the logic in Holland, treaties can extend Congress’s power beyond enumerated powers to those subjects in those treaties—which themselves have no subject-matter limitations. This understanding could expand Congress’s power virtually without limit. It is inconsistent with the scheme of enumerated powers and the 10th Amendment’s premise of reserving powers to the states.
Congress possesses only the “legislative powers herein granted.” It is by those specific, limited powers that Congress initiates the mechanism of American law: Congress makes laws; the president executes laws; and the judiciary interprets those laws. Congress thus expands the scope of presidential power by enacting new laws which the president can then execute. Similarly, the president can expand the scope of judicial power, which according to Article III extends to “Treaties made, or which shall be made.” But nowhere can the president expand the powers of Congress by signing treaties. Indeed, in no way can the power of Congress extend beyond those powers enumerated in Article I. Congress’s powers are fixed.
Holland also enables circumvention of the amendment process. As a general rule, the subject matter of legislative power can be increased only by constitutional amendment. The amendment process, unlike the relatively simple treaty process, is far more elaborate to prevent placing the Constitution on a level of ordinary legislative acts, which can be easily changed. It would be wholly contrary to the Founders’ thinking to assert that the president and Senate can work to expand legislative power via treaty to effectively circumvent the amendment process.
If Holland were correct, then the president—or a foreign sovereign—could also decrease Congress’s power and render U.S. laws unconstitutional. Just as a treaty could expand legislative power, by Holland’s reasoning, the president and Senate could similarly contract legislative power. It implies that some exercises of legislative power derive their authority not from the Constitution, but from specific treaties. If a treaty is enacted and later terminated by the president, statutes made under that treaty suddenly become unconstitutional by unilateral executive action. Similarly, by renouncing a treaty, a foreign sovereign could thus render acts of Congress unconstitutional at his own discretion.
The most influential argument supporting Holland is based on a misreading of constitutional history. Professor Louis Henkin wrote that based on constitutional drafting history, “The ‘necessary and proper’ clause originally contained expressly the power ‘to enforce treaties’ but it was stricken as superfluous.” This would suggest that the Necessary and Proper Clause indeed includes Congress’s power “to enforce treaties” beyond enumerated powers.
This is wrong. Recent scholarship has demonstrated that the words “to enforce treaties” never appeared in any draft of the Necessary and Proper Clause. It was simply an incorrect reading of constitutional history.
Holland is a structural and doctrinal anomaly and is in tension with Reid v. Covert (1956). In that case, the Court ruled that the president’s signing of a treaty does not empower Congress to violate the Constitution, absent a constitutional amendment. Also, Holland creates doubly perverse incentives: it encourages both entangling alliances, which in turn would increase legislative power beyond those enumerated.
Finally, Holland should not be sustained on stare decisis grounds. It may be precedent, but it was badly reasoned, which the Court has held may justify a new ruling. Similarly, the Court has reconsidered past opinions when new scholarship demonstrates errors in those opinions, especially when they are fundamentally inconsistent with constitutional structure.
The Supreme Court ruled that the CWCIA was not meant to cover such local conduct because among other reasons, Bond’s act was not an instrument of “combat,” thus falling outside of the generally accepted definition of the term “weapon.” Also, federalism, according to Chief Justice Roberts’ opinion, prohibits such congressional intrusion on traditional state criminal jurisdiction. As the Chief Justice put it, “The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
The concurring opinions of Justices Scalia, Thomas, and Alito more closely echoed CCJ’s constitutional argument. Justice Scalia wrote that the Act in question indeed covers Bond’s actions based on the definitions provided in the statute, but the Act itself is an unconstitutional expansion of legislative power. Justice Thomas also wrote that the Act unconstitutionally envelopes state powers, that the “aggrandizement of federal power cannot be justified as a ‘necessary and proper’ means of implementing a treaty addressing similar subject matter,” and in particular that the “Treaty Power is itself a limited federal power.” Alito also would have reversed Bond’s conviction on constitutional grounds.