by Duncan Hollis
Things are continuing to gear up here in the United States for the big foreign affairs law case of the year -- U.S. v. Bond, which, among other things may allow the Supreme Court to revisit one of its most significant foreign affairs law cases ever - Missouri v. Holland. Bond asks two questions: (1) whether the Constitution limits Congress's authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question -- the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the "scope and continuing vitality of . . . Missouri v. Holland". Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.
So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress' authorities under Article I. That, after all, was the central holding of Holmes' opinion in Missouri and it's the one that most scholars fear -- or, hope, depending on their disposition -- may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh). But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause. The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute. This is not a surprising argument. The Commerce Clause's expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes' impassioned assertion of a dynamic reading of the treaty power.
Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority -- the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser's Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They've now posted a scholarly exposition of their argument on SSRN. Here's the abstract:
The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.
The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.
I find myself fairly convinced of the paper's historical claim -- that the reference to the law of nations at the time of the Framing included U.S. treaty obligations. Thus, I think their argument is one the Court can (and should) consider in the Bond case. In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition. Let me highlight three after the jump.