In 2014, the United States Supreme Court had the opportunity to revisit its Missouri v. Holland decision, especially on the question of whether or not the treaty power found in Article II, Section 2 of the Constitution can be used to expand the reach of the federal government. In that 1920 decision, the Court held (without citation) that “there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could.” Missouri v. Holland, 252 U.S. 416, 64 L. Ed. 641 (1920), at 647-8
Bond v. United States arose from a Pennsylvania assault case in which a jilted wife spread cleaning chemicals on the doorknob and mail box of her husband’s lover to try to inflict burns in retribution for her adulterous act. But rather than prosecute Bond under Pennsylvania’s assault laws, prosecutors chose to charge her with violation of the Chemical Weapons Convention Implementation Act of 1998 ("the Act"), which was passed by Congress to implement U.S. treaty obligations. Bond appealed, arguing that the law should not apply to her actions and, further, that it presents an unconstitutional violation of the division of powers under American federalism (challenging Missouri v. Holland).
MAJORITY OPINION: NO COMMENT
Chief Justice John Roberts wrote the majority opinion in Bond, joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. In it, the Court opted not to revisit the Missouri v. Holland decision, finding instead that the Act was not intended to reach to the kind of local violation committed by Bond.
“In sum, the global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat local assault with a chemical irritant as the deployment of a chemical weapon.” Roberts wrote. “There is no reason to suppose that Congress – in implementing the Convention on Chemical Weapons – thought otherwise.” Bond v. United States, 572 U.S. ___ (2014), slip opinion, at 20-1.
As a result, the earlier ruling was left untouched under the “well established principles governing the prudent exercise of th[e] Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” (ibid, at 9)
SCALIA’S CONCURRENCE: A MISSED “OPPORTUNITY – NAY, OBLIGATION”
Although Scalia agreed with the Court’s conclusion that the Act should not be applied to Bond’s case, he issued a strongly-worded concurrence, joined by Justice Thomas in full and by Justice Alito in part, decrying what he saw as a dereliction of duty by his fellow justices.
“We should not have shirked our duty and distorted the law,” Scalia wrote, “to preserve th[e] assertion [of Missouri v. Holland]; we should have welcomed and eagerly grasped the opportunity – nay, the obligation – to consider and repudiate it.”
THOMAS’S CONCURRENCE: THE TREATY POWER A LIMITED FEDERAL POWER
Justice Thomas, while acknowledging that the question had not been raised in the Bond case, took the opportunity nevertheless “to suggest that the Treaty Power is itself a limited federal power.” Citing founders such as James Madison, Thomas Jefferson, and Alexander Hamilton, Thomas pointed out that from the outset, “‘The object of treaties,’ in Madison’s oft-repeated formulation, ‘is the regulation of intercourse with foreign nations, and is external.’”
He further asserted that “whatever its other defects, Missouri v. Holland, 252 U.S. 416 (1920), is consistent …with the understanding that treaties are limited to matters of international intercourse,” because the Court noted that the treaty in question was of international import.
Thomas then acknowledged the movement by some to redefine treaties to include agreements to govern domestic affairs. He points out, however, that “only in the latter part of the past century have treaties challenged that prevailing notion by… ‘purporting to regulate the relationship between nations and their own citizens.’” (citations omitted)
He concludes with the observation that “even the Solicitor General in this case would not go that far; he acknowledges that ‘there may well be a line to be drawn’ regarding ‘whether the subject matter of [a] treaty is a proper subject for a treaty.’” (citation omitted)
In short, Thomas has laid out an argument in preparation for a time when a full discussion of the scope of the treaty power does in fact come before the Court. “That chance,” he says, “will come soon enough.”
ALITO’S CONCURRENCE: THE CONVENTION HAS GONE TOO FAR
In the final pages of the Bond decision, Justice Alito expresses agreement with the historical context and meaning of the treaty power as laid out by Justice Thomas. Unlike Thomas, however, Alito believes that because “petitioner’s conduct violated 18 U.S.C. §229, the federal criminal statute under which she was convicted,” that he “therefore find[s] it necessary to reach the question whether this statute represents a constitutional exercise of federal power….” He then goes on to conclude that it does not, for reasons already expounded in the hypothetical by Scalia and Thomas.
“[I]nsofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States,” Alito concludes, “the Convention exceeds the scope of the treaty power. Section 229 cannot be regarded as necessary and proper to carry into execution the treaty power, and accordingly it lies outside Congress’ reach….”
Justices Scalia, Thomas, and Alito all raise important questions regarding the scope of the federal treaty power according to the Missouri v. Holland decision, but none of them – nor all three together – have the power to change the current interpretation. At best, they have voiced judicial arguments that may be taken up at a later time. Perhaps wise judges will take their reasoning into account when weighing the scope of the federal treaty power.
The precedent set in Missouri v. Holland cannot be corrected except by a majority of the Court or by constitutional amendment. So until such time as the entire Court takes up the questions raised in their concurrences, the opinions summarized here are of no legal effect.
Continue reading with Missouri v. Holland (1920).
Read the Bond v. United States decision here.