Bond v. United States Demonstrates Why International Law Classes Should be Mandated for Law Students and Practicing Attorneys
On June 2, 2014, the U.S. Supreme Court issued a ruling in Bond v. United States. The facts in Bond are so ridiculous that unfortunately every news outlet reporting on the case spent more time describing them than discussing the complex legal issues raised by the opinion. It is clear that in writing the majority opinion, Chief Justice Roberts took great delight in drafting language that showcased his amusement with the facts, without crossing the lines of propriety. Hidden behind the pathetic facts of the case, however, are critical legal issues involving international and constitutional law, federalism, and domestic implementation of international treaties.
The facts can be distilled to two sentences: After learning that her husband impregnated her best friend, Ms. Bond put chemicals on surfaces that her friend was likely to touch. The pregnant friend avoided most of the chemicals, and suffered only a minor burn to her thumb (which was remedied by putting it under running water).
Miffed that the local prosecutor did not take the case seriously, a zealous federal prosecutor in Pennsylvania successfully brought charges against Ms. Bond for violating the Chemical Weapons Convention Implementation Act of 1998. Congress enacted this 1998 statute to enforce domestically the Convention on the Prohibition of the Development, Stockpiling, and Use of Chemical Weapons and on their Destruction that the U.S. ratified in 1997. Such implementing legislation is necessary because there is a presumption that treaties are not self-executing (i.e., that they cannot be enforced domestically) unless Congress specifically states so in the treaty itself, or subsequently enacts implementing legislation.
Simply by charging her with violating the Chemical Weapons Convention, the prosecutor took the case out of the local realm and turned it into a major debate about the relationship between international treaties and domestic law. By the time the case got to the Supreme Court, the focus was no longer on Ms. Bond’s two-bit vengeful acts, but rather, on whether Congress had the constitutional authority to enact legislation that implements international treaties domestically. Did the prosecutor really intend for this to happen?
The Supreme Court unanimously held that Congress did not intend the CWCIA to extend to crimes like Ms. Bond’s. Allowing Ms. Bond’s conviction to stand “would transform the statute from one whose core concerns are acts of war, assassination and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults.” In the process of issuing a very limited majority opinion, Chief Justice Roberts wrote quite extensively, however, on the relationship between federal and state law.
Justices Scalia, Thomas and Alito grabbed the opportunity to use this ridiculous case as a platform for their Federalist Society viewpoints. Their opinions call into question Congressional power to implement treaties domestically. Their opinions challenge the 1920 case Missouri v. Holland, which courts have long interpreted as giving Congress the power to enact legislation to implement treaties domestically, even when the implementing legislation intrudes on what would otherwise be within a state’s exclusive province.
Justice Scalia sounds the alarms that international treaty provisions might cause courts to override Supreme Court cases limiting Congressional power. (Tellingly, the only two examples he could muster to demonstrate his point were the Supreme Court’s very divided decisions striking down parts of the Violence Against Women Act, and federal gun control laws that limited firearm use near schools!) Justice Thomas’s opinion goes even further. He calls into question Congress’s authority to enter into any treaties that do not concern foreign relations. Treaties that would fall into that category that readily come to mind are international human rights treaties.
When reading the opinion, I wondered why in his right mind the prosecutor charged Ms. Bond with violating the Chemical Weapons Convention. Although I have not spoken with the prosecutor, I have concluded that it is highly unlikely that he had any idea of the implications of his actions. I also highly doubt that the prosecutor wanted this wacky case to be a test case for Georgetown professor Nicholas Quinn Rosenkranz’s theory that Missouri v. Holland should be overruled. Rosenkranz’s 2005 Harvard Law Review article on that subject sparked countless academic symposia, and was embraced fully by Justice Scalia in Bond.
If the prosecutor had taken a basic course in international law in law school, however, or a CLE course covering those topics, he most likely would have thought twice before invoking the Chemical Weapons Convention. As Chief Justice Roberts pointed out, a plethora of other criminal statutes exist that most certainly cover adequately Ms. Bond’s legal transgressions. The Chemical Weapons Convention is a treaty, which by definitions has international implications. Had the prosecutor known even basic international law, he would have realized that parties outside of Norristown, Pennsylvania would be watching his case very very closely.
We are in an era where law schools are re-thinking their curricula in response to criticism by judges and employers that law students are ill prepared for the practice of law. Law schools are focusing on adding “experiential” components to doctrinal classes. They are also contemplating making legal clinics mandatory, or having law school be two years of classes and a third year of supervised hands-on lawyering. All of those good ideas should be explored further.
On the heels of Bond v. US, however, I propose another large-scale curricular change. Law schools and state bars should require all law students and practicing lawyers to take at least one course in international law. That course should cover both public and private international law.
Today, everyone, including lawyers, comes into contact with international issues. Even small local businesses deal with international law issues, whether they realize it or not. (For example, the local deli may sell vegetables from Peru and employ documented or undocumented immigrants.) Thousands of refugees flee war-ravished failed states in search of safe homes that, sometimes, are half way around the globe. As a result, the U.S. and countries around the world are struggling to define their immigration policies. And, on and on it goes.
That is why lawyers need to be able to recognize the full scope of international law issues when they encounter them. Lawyers need to know the implications of invoking international law, and should know when they are in danger of making bad law that they did not intend. Many valuable resources would have been saved if the federal prosecutor who charged Bond, or his supervisor, realized that invoking the Chemical Weapons Convention Implementation Act for such a petty crime was pure folly. Because they failed to engage in basic issue spotting, we now have a U.S. Supreme Court decision where three concurring justices seriously call into question case law that has been settled for nearly 100 years that defines Congress’s treaty-making powers