In Bond v. United States, (1) the U.S. Supreme Court disallowed the prosecution of a domestic poisoning case under legislation that implements the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. (2) In doing so, a majority of the Court declined to address constitutional issues concerning the relationship between the national government's treaty power and the U.S. federal system of government. Instead, the majority resolved the case by applying a presumption that federal statutes do not intrude on traditional areas of state authority, such as the prosecution of local crimes, absent a clear indication that Congress intended that result. This interpretive presumption may have implications for how other treaty-implementing legislation is construed, and also for how such legislation is drafted in the United States in the future.
THE TREATY POWER AND AMERICAN FEDERALISM
The U.S. Constitution grants broad but not unlimited powers to the national government. The Tenth Amendment to the Constitution expressly reserves some authority to the constituent states, or to the people. (3) One of the powers granted to the national government is to conclude treaties on behalf of the United States. This power is shared between the executive and legislative branches: the Constitution gives the president the authority to conclude treaties, but it requires that he obtain the advice and consent of two-thirds of the Senate. (4) Treaties ratified by the United States are part of the supreme law of the land and can be enforced by the courts if they are self-executing. (5) When there is a conflict between a valid self-executing treaty and state law, the state law is preempted. (6)
The scope of the national government's treaty power has long been debated in the United States. The Constitution specifies the required process for making treaties but does not articulate limits on the content of treaties or the extent to which they can be used to effectuate changes in domestic law. The seminal decision concerning the scope of the treaty power is Missouri v. Holland (7) In that case, the state of Missouri sued to prevent a federal game warden from enforcing the Migratory Bird Treaty Act of 1918, a federal statute that implemented a migratory bird protection treaty concluded between the United States and Great Britain (which at the time was still handling Canada's foreign policy). Two federal district courts had held that an earlier version of the statute, enacted prior to the conclusion of the treaty, was unconstitutional because it infringed on the reserved powers of the states to regulate natural resources within their borders. In Holland, the Court concluded that, regardless of whether those district court decisions were correct, Congress has broader authority when it is implementing a treaty than when it is relying only on its ordinary legislative powers. In upholding the constitutionality of the legislation before it, the Court made clear that it was not implying that there are no limitations on the treaty power, but said that those limitations "must be ascertained in a different way" from the limitations that apply to mere domestic legislation. (8) "No doubt the great body of private relations usually fall within the control of the State," observed the Court, "but a treaty may override its power." (9)
Holland stands for the proposition that the national government has more authority to regulate state and local matters when using the treaty power than when acting pursuant to Congress's domestic legislative authority. (10) This proposition has sometimes been questioned, most significantly during the Bricker Amendment debates of the 1950s, when the Senate considered (but did not adopt) various proposed constitutional amendments to limit the treaty power. (11) Even if fully accepted, however, Holland does not settle all issues concerning the scope of the treaty power. Perhaps most notably, it does not settle whether there are subject matter limits on that power. At various times, it has been suggested that the treaty power might be limited to matters of international concern and that it would therefore be improper to use the power to regulate purely domestic matters. (12) In Holland, the Court did not address this issue directly, but it did emphasize that migratory birds, which travel across state and national boundaries, could be adequately protected "only by national action in concert with that of another power." (13) The decision is therefore not inconsistent with a subject matter limitation on the treaty power.
The condensed and oracular style of the opinion in Holland--a hallmark of its author, the famous Oliver Wendell Holmes Jr.--also invites questions about its implications. For example, the Court stated, without elaboration, that " [i]f the treaty is valid, there can be no dispute about the validity of the statute under Article I, [section] 8, as a necessary and proper means to execute the powers of the Government." (14) The Constitution gives Congress the authority "[t]o make all Laws which shall be necessary and proper for carrying into Execution" both its own powers and "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof," (15) and it has long been assumed that Congress can use this Necessary and Proper Clause authority to implement treaties. (16) Even if this assumption is true, however, it is going too far to suggest, as Holmes cryptically did, that "there can be no dispute" about the validity of an implementing statute. At a minimum, for legislation to constitute necessary and proper implementation of a treaty, it would presumably need to have a rational relationship to what is required by the treaty. (17) Most likely, Holmes simply meant that in that case if the migratory birds treaty was valid, so was the implementing legislation, since the legislation was closely connected to the requirements of the treaty.
The Court in Holland was also unclear about the extent to which it viewed the treaty power as immune from federalism limitations. It described the question before it as whether the statute in question "is forbidden by some invisible radiation from the general terms of the Tenth Amendment," (18) a formulation that does not seem to give much weight to federalism considerations in this context. But it also emphasized that the state interest at issue was modest, given that migratory birds are only temporarily within the borders of a state. By contrast, said the Court, "a national interest of very nearly the first magnitude is involved." (19) This language suggests a weighing of state and federal interests, not a dismissal of federalism considerations.
During the last two decades, the scope of the treaty power has again become a point of controversy. Part of the reason for this development is the proliferation of treaty making in the post--World War II period. At the time of the constitutional founding, the United States was a party to only a handful of treaties, all bilateral. Today, the United States is a party to thousands of treaties, many of which are broad-based multilateral agreements that resemble legislative codes. (20) These treaties, moreover, cover a vast range of subject matters that much more frequently intersect with areas traditionally regulated by domestic law. (21) This intersection is especially apparent with respect to human rights treaties, which regulate how governments, including the U.S. government, interact with their own citizens. Part of the fallout of the Bricker Amendment controversy was that the United States did not begin ratifying any of the major human rights treaties until the late 1980s, and even today it is not a party to several of them.
The treaty power has also become controversial again because of the Supreme Court's increased attention to federalism limitations on the national government's authority in recent years. For example, the Court has enforced limits on the scope of Congress's authority to regulate interstate commerce and to protect against state and local violations of individual rights. (22) It has also held that Congress may not "commandeer" state legislative and executive officials to carry out federal programs. (23) In addition, the Court has held that...