Trick or Treaty Power: What Justice Scalia’s Concurrence in Bond v. United States Ignores

Joey Meyer

In an opinion by Chief Justice Roberts issued on June 2, the Supreme Court ruled in Bond v. United States that the Chemical Weapons Convention Implementation Act, enacted by Congress to implement the 1997 Chemical Weapons Treaty, does not apply to a Pennsylvania woman’s use of a toxic concoction against her husband’s paramour, and thus could not be used to prosecute her in federal court.  Because the Court held that the statute did not apply to Carol Anne Bond’s conduct, it did not need to address Bond’s challenge to the constitutionality of the law itself.

In a concurring opinion that reads more like a scathing dissent, however, Justice Scalia takes issue with the Roberts opinion, arguing that the text of the Implementation Act does in fact reach Bond’s “local conduct,” and that the Act is an unconstitutional extension of Congress’ power under the Necessary and Proper Clause.  Justice Scalia relies in part on an argument introduced by Nicholas Rosenkranz in the Harvard Law Review back in 2005 (and advanced in a brief Rosenkranz wrote for the Cato Institute in this case), positing that the Necessary and Proper Clause authorizes Congress to enact legislation related only to the making of treaties, not their implementation.

According to both Scalia and Rosenkranz, this conclusion follows from reading the Necessary and Proper and Treaty Power Clauses in combination:  “Read together,” Scalia writes, “the two Clauses empower Congress to pass laws ‘necessary and proper for carrying into Execution … [the] Power … to make Treaties.’”  According to Scalia, reading the two Clauses in conjunction proves that “once a treaty has been made, Congress’ power to do what is ‘necessary and proper’ to assist the making of treaties drops out of the picture.”  This argument isn’t just unwise as a practical matter, it’s wrong as a matter of constitutional text and history.

First, Justice Scalia ignores what our Nation’s Founders understood:  that a nation’s ability “to make” treaties depends upon the ability to assure its international partners that it can enforce them.  As CAC argued in its amicus brief, if the United States is unable to honor its international obligations, there is no reason to think that other countries will continue to enter into treaties with us.  Thus, the enactment of implementing legislation for existing treaties facilitates the United States’ ability “to make” treaties in the future.  More specifically, a treaty itself may make its entry into force conditional upon the enactment of implementing legislation, or the President may delay joining the treaty until after Congress has acted.  As Professor Jean Galbraith explains in her series on the Treaty Power, “historically U.S. practice has sometimes required that the implementation of treaties occur prior to their ratification or entry into force.”  Justice Scalia’s narrow focus on the verb “to make” – and his suggestion that “making” treaties is categorically separate from, and always prior to, implementing them – “befogs” (to borrow a choice word from Scalia’s opinion) the true nature of the treaty-making process and obfuscates what the “Power… to make Treaties” logically entails.

Second, Justice Scalia ignores the importance the Framers attached to the Treaty Power – and the new Nation’s ability to honor commitments it made pursuant to that power.  As James Madison made clear in Federalist Paper No. 42, one major problem with the precursor Articles of Confederation was that the federal government’s treaty power lacked an adequate enforcement provision, allowing treaties to be “substantially frustrated by regulations of the States.”  Committed to bolstering the young republic’s credibility abroad, the Framers crafted a broad Treaty Power – along with a Supremacy Clause that enshrined treaties as “the supreme Law of the Land” – to ensure the federal government’s ability to honor its international commitments. 

Moreover, even if the Constitution’s text and history were not sufficiently clear on this point (and they are), the post-ratification history is.  As CAC’s amicus brief notes, members of Congress in the post-ratification period specifically addressed this issue and repeatedly construed the Necessary and Proper Clause as granting Congress the authority to enact legislation implementing treaties.  Such was the case for legislation implementing the Jay Treaty in 1796 and the commercial treaty negotiated as part of the Convention of 1815 with Great Britain.

Purporting to draw his argument from the “text and structure” of the Constitution, Justice Scalia ignores critical aspects of both.  We can be thankful that the Court’s majority had the good sense not to listen.


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