Bond v. United States and the Treaty Power

Carole Anne Bond sought revenge against her husband’s pregnant mistress as any women in her situation would: by stealing 10-chlorophenoxarsine from the chemical manufacturing company where she worked and purchasing potassium dichromate online. After smearing these highly toxic poisons on the mistress’ car door, mailbox, and front doorknob, Bond was arrested for — of all things — violating the federal Chemical Weapons Convention Implementation Act. Now her case, heard before the Supreme Court today, could change two centuries of American treaty law.

The Constitution places the entirety of foreign policy and international relations to the federal government’s sphere. Central to this is United States’ to sign and ratify treaties, tasks performed by the President and the Senate respectively. Once duly and lawfully ratified, all treaties become part of the “supreme law of the land,” alongside federal statutes and just below the Constitution itself.

In the over 200 years of American foreign policy, the Supreme Court has never struck down a treaty ratified between the United States and foreign powers. In 1936, the Supreme Court held that the Constitution implicitly grants plenary powers in foreign policy to the executive branch. Justice Robert H. Jackson wrote in an opinion eight years later that foreign policy decisions in general are “delicate, complex, and involve large elements of prophecy…They are decisions of a kind for which the Judiciary has neither the aptitude, facilities, nor responsibility, which has long been held to be the in the domain of political power not subject to judicial intrusion or inquiry.”

Reflecting this institutional aversion, the Supreme Court’s treaty case law is spare and occasionally incongruous. The guiding precedent on treaties in this case is Missouri v. Holland, a 1920 case in which Missouri sued a U.S. game warden to halt implementation of the Migratory Bird Treaty Act on Tenth Amendment grounds, The Court then, while not foreclosing constitutional challenges to treaties, nevertheless gave the federal government broad discretion in enforcing them. In Reid v. Covert in 1957, the Court also made explicit what had previously been implicit: that the Constitution is supreme over all treaties ratified by the Senate. Most recently, in Medellin v. Texas, the justices distinguished between self-executing treaties and non-self-executing treaties and ruled that the Vienna Convention was not binding upon state courts without an Act of Congress.

Thus the fundamental question comes before the Court: What constitutional limits exist on the federal government’s power to enforce a lawfully-ratified treaty?

Bond’s counsel, led by Paul Clement, sought a narrower interpretation of the Chemical Weapons Convention Act. Although the Chemical Weapons Convention itself was a valid non-self-executing treaty, argued Clement, the Act that executed it exceeded both the Constitution’s limits on federal police powers and the convention’s intent by criminalizing non-state chemical weapons usage.

The court’s more liberal justices immediately pounced. Justice Kagan asked him where the Constitution constrained the treaty power. Clement cited the Tenth Amendment, which enshrines the principle of federalism by relegating all powers not held by the federal government to the states and to the people. Sotomayor took aim at the impact his position would have on the treaty’s purpose and its role in American foreign policy. “Look at the Syria situation alone. It would be deeply ironic that we have expended so much energy criticizing Syria if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional.”

Solicitor General Donald Verrilli, arguing for the government, urged the justices to reject what he described as an “ad hoc ‘too local’ limit on the treaty power [that] can’t be squared with a judgment the Framers made, this Court’s precedent, or consistent historical practices since the time of the Founding.” (On this last point, he and many of the justices repeatedly referred to the repayment of confiscated property to British subjects after the Revolution, an experience which shaped the treaty power’s creation during the Constitutional Convention.) The solicitor general also added that imposing the petitioners’ limit would “compromise foreign affairs and national security interests of the first order.”

Chief Justice Roberts began by pressing Verrilli on what powers the federal government could be granted through the treaty clause. Picking up on a hypothetical first posited by Clement, the chief justice suggested that the international community could draft a multilateral treaty to grant national legislatures the police power to enforce their other treaty obligations. An act of Congress could then give the federal government the power to prosecute purely local crimes. “Any problem with that?” the chief justice asked, somewhat pointedly. Verrelli evaded. “First, I would make the point, Mr. Chief Justice, that it seems unimaginable that a convention of that kind would be ratified by two-thirds of the Senate, which it would have to be.”

Justice Kennedy interrupted. “It also seems unimaginable that you would bring this prosecution!”

Laughter erupted in the courtroom. Roberts returned to his line of questioning by noting that when the Founding Fathers gave the Senate the power to ratify treaties, its members were elected by state legislatures.

Justice Scalia then joined in with his own hypothetical treaty. Laws on marriage, divorce, and adoption, he explained, have long been the near-exclusive domain of state governments. If the Senate ratified a non-self-executing treaty legalizing same-sex marriage, would Congress then be empowered to write federal marriage laws and federal divorce laws? Verrilli challenged Scalia’s question itself. If a self-executing treaty could impose same-sex marriage nationwide, the Solicitor General argued, then so could a non-self-executing treaty.

The justices also took aim at the seemingly-unrelated nature of the crime to the statute’s purpose. “Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” Alito asked the solicitor general. The courtroom burst into laughter. “On Halloween we gave them chocolate bars. Chocolate is poison to dogs, so it’s a toxic chemical…” he continued. “There’s chocolate all over the place,” Breyer noted somewhat mockingly.

Verrilli was stone-faced. “This is serious business,”

Breyer, who seemed open to a narrower ruling along statutory lines, pursued Verrilli on the Implementation Act’s breadth. In addition to the Chemical Weapons Convention, an annex further breaks down the prohibited chemicals into three classifications, or “schedules.” Neither 10-chlorophenoxarsine nor potassium dichromate, the two chemicals Bond used, are listed on the Chemical Weapons Convention’s classifications. This seemingly opened the door to limiting the Implementation Act’s scope, but neither Verrilli nor the more liberal justices walked through. “It’s a puzzle that the treaty could be constitutional, but the implementing legislation that adds nothing is unconstitutional,” noted Justice Ginsburg. Sotomayor likened the act’s language to similarly statutory language for a dangerous weapon. “I don’t think of a car as necessarily a dangerous weapon…It’s only when I’m using it for a prohibited purpose that it turned itself into a dangerous weapon.”

“Could Congress regulate the possession of a gun within a school zone by entering into a treaty that authorizes such legislation?” Alito asked. He referenced United States v. Lopez, a 1995 case in which the Court struck down a federal law banning firearms near schools on the grounds that it exceeded Congress’ Commerce Clause powers. Would the government’s treaty powers enable the President and Senate to circumvent that ruling through an international convention? Verrilli refused to say outright either way. “I think the question in that case would be whether the treaty is a valid exercise of that power.”

Breyer interrupted, pointing out that “…in principle, your position constitutionally would allow the President and the Senate — not the House — to do anything through a treaty that is not specifically within the prohibitions of the rights and protections of the Constitution.” Verrilli again warned against drawing any line by statutory construction, citing “real risks” to American foreign policy. Finally, perhaps sensing his other arguments weren’t working, the solicitor general hammered home the national interest case in his conclusion:

The United States’ leadership in the Chemical Weapons Convention has made a big difference in ensuring that this norm […] is a norm that the nations of the world have agreed to…It is critically important, and I respectfully submit that the line that the Petitioner is asking this Court to draw is not consistent with the intent of the Framers, with this Court’s precedent, or with the national interests that I have described.

With that, his time ran out.

What conclusions can we draw from today’s arguments? Oral arguments are notoriously unreliable for gauging a case’s final outcome — the health care reform decision illustrated that magnificently — but a distinct majority of the justices seemed unwilling to embrace the government’s absolutist interpretation of the treaty power. With the sharp incongruity between the Chemical Weapon Convention’s purpose and its enforcement in this instance, the Court’s refusal to read the treaty power so broadly here wouldn’t be surprising. Whether the last-minute national security pitch will sway any of the justices seems doubtful, too; Breyer in particular was frustrated the argument hadn’t been made in any of the government’s briefs.

There might be a third alternative here, however. Breyer, Alito, and Scalia were rankled by the Solicitor General’s refusal to entertain the idea that there was “daylight” between the Chemical Weapons Convention and its Implementation Act for them to close. A statutory approach along those lines would allow the Court to make a narrower ruling than one decided on Tenth Amendment grounds. Opening every non-self-enforcing treaty to federalism challenges in the courts would have serious repercussions for the nation’s foreign policy, something that the justices may not be eager to unleash. They already showed great caution by explicitly refusing to let Missouri v. Holland be reassessed here. Perhaps that sobriety will also be reflected in their final ruling. Or perhaps the conservative justices’ hypothetical scenarios of flagrantly-abusive treaties are weighing more heavily on them than we think.

Tragedy and Memory

An article in The Nation today by Robert Scheer made the outstanding claim that “August 6 marks 68 years since the United States committed what is arguably the single gravest act of terrorism that the world has ever known.” The act, of course, is the atomic bombings of Hiroshima and (three days later) Nagasaki. To Scheer’s credit, he included the modifier “arguably,” which seems insufficient to capture the magnitude of the statement. Yet it is not enough.

From the start, even the definition of terrorism is problematic. Hoffman traces the term’s origins to the French Revolution. Since then, it has described Osama bin Laden and al-Qaeda, Nathan Bedford Forrest and the Ku Klux Klan, Gerry Adams and the Provisional Irish Republican Army, and countless other armed groups. Not all those labeled as terrorists fit the popular conception: for leading the armed wing of the African National Congress against apartheid South Africa, Nelson Mandela spent 27 years in prison. The State Department only lifted his designation as a terrorist after the revered statesman had already won the Nobel Peace Prize and successfully won South Africa’s first multiracial presidential election. “Terrorism means the deliberate targeting of innocent civilians, and targeted [Hiroshima and Nagasaki] were,” Scheer states. If only it were that simple.

Despite the thousands of man-hours put into the subject by political scientists and legal scholars around the world, there is no universally agreed-upon definition of terrorism. Unlike other forms of political violence like war and rebellion, what constitutes terrorism is not a fixed constant but an emotionally-charged, subjective, and imprecise term at best. Almost all scholars, however, agree on one characteristic: that it is caused by non-state actors against civilian populations. While tens of thousands of Japanese civilians died in the atomic bombings, they died in the course of a declared armed conflict between the United States of America and the Empire of Japan. Examining it under the laws of war is the more appropriate framework framework. Neither an international tribunal nor an American court has addressed the atomic bombings in this war, although a post-war Japanese court ruled the atomic bombings to be war crimes. War crimes and terrorism, however, are two different things.

Scheer also reveals a fundamental shift in Western political thought, in which “terrorism” is increasingly applied to all manner of violent actions that do not strictly (or even loosely) meet the political science definition. Culturally, it is no longer simply armed violence by non-state actors against civilian populations for political reasons, or any other semantic permutation. Terrorism has become a super-crime, elevated beyond the mere misdemeanors and felonies composing it into an existential societal burden. Only into this darkest of categories can the atomic bombings of Hiroshima and Nagasaki fall, according to Scheer, and we must all bear some collective guilt for it. “As a nation,” Scheer writes, wagging a finger to an audience overwhelmingly born after August 6, 1945, “we excel at obliterating reminders of our own failings.”

But context also matters. As U.S. forces drew closer to the Japanese archipelago, enemy garrisons in Peleliu, Tarawa, Luzon, and Iwo Jima only demonstrated increasing resilience. 100,000 Japanese soldiers dug into the mountainsides at Okinawa, the last stronghold before the Home Islands, and traded their lives for 60,000 American casualties. American war planners extrapolated from those losses when estimating the human cost of Operation Downfall, the codename for the planned Allied invasion of the Japanese Home Islands. Had it been executed, it would have been the largest amphibious military operation of all time, dwarfing even the Normandy landings in size, scope, and scale. 900,000 Japanese soldiers stood ready to defend their home, along with millions of civilians conscripted into the reserves and armed with often nothing more than farm implements.

The war planners’ estimates varied from branch to branch, but few foresaw fewer than 100,000 fatalities and a quarter-million casualties for the Allies in the first stage alone. Estimates that factored in the mass mobilization of the Japanese people as guerrillas and the widespread usage of airplanes, boats, and midget submarines as kamikazes (at least 10,000 planes had been prepared) had dramatically higher casualties for both the Allies and for Japan. The latter were estimated to suffer almost-unconscionable losses: between five and ten million civilian casualties were not unexpected in even the most conservative projections.

(None of this was idle speculation, either. In 1945 the War Department manufactured 500,000 Purple Heart medals in anticipation of the vast casualties Downfall would bring. That stock has yet to be depleted today, even after every battle and every war the United States has fought since 1945.)

With the country’s industrial base and population already devastated by relentless Allied air raids — more Japanese citizens died in the March 10, 1945 firebombing of Tokyo than in either Hiroshima or in Nagasaki — Downfall presented a truly existential threat to the Japanese nation. With so many millions of lives in the balance, American and Japanese alike, we can see the calculus that led Harry Truman to authorize the atomic bombing, even if we disagree with it.

None of this precludes the idea that there are dark, shameful chapters in American history. White settlers and soldiers presided over the forced relocation of Native American tribes, warring with those who resisted. A slaver aristocracy in the South plunged the United States into civil war because the nation had elected a president who thought the enslavement of four million black men, women, and children was not moral. Hundreds of thousands of Japanese-Americans were interned during World War II by order of Franklin D. Roosevelt, forsaken by Congress and even the courts of law. The United States of America was founded on great ideals, but its people and leaders have frequently failed to live up to them.

But to single out Hiroshima above all others, to point at it and say, “Yes, this is the worst that humanity has ever done” seems hollow. What does such a sweeping statement say about the other blood-soaked chapters of World War II? Shall we compare the tens of thousands who died at Hiroshima to the quarter-million who died at the Rape of Nanking, where Japanese soldiers raped, tortured, and murdered Chinese civilians for three days, or the tens of thousands who perished in flames at Dresden? Shall we then stack those corpses against those from the forced starvation of millions of Soviet citizens by Germany on the Eastern Front, or against the Wehrmacht’s horrific multi-year sieges of Leningrad and Stalingrad? Must we rank atrocities and tragedies like some sinister Olympics, duly awarding medals of shame to those whose nations have most thoroughly and efficiently brutalized their fellow human beings?

Historians will never cease debating the atom bomb’s role in ending the worst war humanity ever fought, nor should they. Future generations may find Truman’s decision to be justified and necessary, to be unwarranted and unforgivable, or perhaps even something more complex than that. We can only hope that they learn from the horrors their forefathers faced. May they never take for granted the indelible luxury that allows them to set one tragedy above another for transitory argumentative gain.