For Better or Worse: SCOTUS Decision in Bond v. U.S. Points to the States

June 3, 2014

Yesterday, in Bond v. United States, the Supreme Court left intact Congress’ power to enact legislation implementing international treaties. Debate will certainly continue within academic circles over the scope of Congress’ authority to give domestic effect to ratified treaties, and indeed the federal treaty power more generally. But, for now, the upshot may be that the cloud has lifted on U.S ratification of the Disabilities Convention. And, post-ratification, U.S. human rights advocates should redouble efforts at the state and local level.

At issue in Bond was the federal government’s prosecution of Carol Bond under the Chemical Weapons Convention Implementation Act, which Congress enacted in 1998 to implement an international convention the U.S. ratified a year earlier. When Bond, a microbiologist, learned that her close friend was pregnant, and that Bond’s husband was the father, she spread toxic chemicals on the friend’s car door, mailbox and door knob. The federal government charged her with violating Section 229(a) of the Act, which makes it a federal crime “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”

Noting an ambiguity in the scope of the Act and relying on what it characterizes as the “well –established” principle that courts must find that Congress intended to override the traditional state/federal balance before construing an otherwise ambiguous statute, the Court found no “clear indication” that Congress intended for the Act to cover Bond’s “purely local crime.” (By the Court’s characterization, the federal prosecution involved “an amateur attempt by a jilted wife to injure her husband’s lover, which ended causing only minor thumb burn readily treated by rinsing with water.”) In doing so, the Court avoided ruling on the question of whether the Act itself violated constitutional federalism limits on Congress’ authority to enact legislation implementing a treaty touching on traditionally local concerns.

Aside from spawning a tide of critical blog posts and a generation of student notes, what might be the decision’s direct impact, particularly for U.S. human rights advocates? Perhaps most immediately, the U.S. Senate can move forward with U.S. ratification of the International Convention on the Rights of Persons with Disabilities (CRPD), a human rights treaty modeled primarily on the Americans With Disabilities Act. At the very least, Bond should no longer stand in its way.

The U.S. Senate failed to provide consent to U.S. ratification of the CRPD when it came to a full Senate vote in December 2012. Though sixty-one Senators voted in favor, the treaty did not gain the necessary approval of a 2/3rds majority. The Senate Foreign Relations Committee revisited the treaty at a hearing in November 2013. By odd coincidence, at the same time, across the street, the Supreme Court was holding oral argument in Bond. Naturally, the confluence placed the case at the center of the hearing, with some Senators suggesting that the Senate postpone consideration of the treaty until the Court issued its decision.

Supporters of U.S. ratification of the CRPD have collectively exhaled since the Court issued its decision in Bond. Hours after the decision was released, The Leadership Conference on Civil and Human Rights stated that “The Supreme Court today gave the Senate the green light to proceed with ratification of the Convention on the Rights of People with Disabilities (CRPD).”

But just how does Bond clear the way for the CRPD? Many proponents of the CRPD insist that U.S. ratification does not require implementing legislation, asserting that current law already brings the U.S. into compliance with the treaty. (To be sure, others are concerned that such insistence weakens the domestic impact of human rights treaties, and advocates’ future ability to draw on ratified treaties to strengthen rights protections within the United States.)

So, if the CRPD doesn’t require implementing legislation, what was the hold up? How does Bond clear the way? And, what might Bond mean for the prospects of other human rights treaties awaiting U.S. ratification?

Bond should assuage the concerns of human rights treaty opponents that U.S. ratification will lead to Congress running roughshod over the states in the name of implementation. While Bond may not put to rest entirely the question of the scope of the treaty power, or Congress’ power to enact implementing legislation (though it has been suggested that the question is unlikely to be put so squarely, or neatly, to the Court again anytime soon), Bond should provide some comfort for those concerned about federal overreaching through the treaty power and the Necessary and Proper Clause. The decision affirms the Court’s continued vigilance in preserving the federalism balance and prohibiting federal legislation that infringes on state jurisdictional authority.

Professor Oona Hathaway and colleagues have argued that “structural, political and diplomatic” factors prevent against federal overreaching through the treaty power. These include reservations, understandings, and declarations that the U.S. attaches to the human rights treaties it ratifies, the Constitutional requirement of a 2/3rd majority for Senate advice and consent to ratify a treaty, and the political process more generally. Now add to the list Bond’s requirement of a “clear indication” that Congress intends to override traditional state powers through federal legislation, including in the realm of treaty implementation.

In Bond, the Court sends something of a warning to Congress: “[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard.” (Opinion at 21.) The Court gave Congress the benefit of the doubt: “There is no reason to suppose that Congress – in implementing the Convention on Chemical Weapons – thought otherwise.” And Congress is on notice not to force the Court’s hand in the future.

All this federalism talk raises reflexive concern among U.S. human rights advocates. We’ve seen this before, in U.S. v. Morrison and other devastating curtailments of federal civil rights protections. Yet advocates can take some consolation that the Court’s resolute policing of Congress’ powers vis a vis the states may, in fact, be what saves U.S. ratification of core human rights treaties. And perhaps it motivates us to redouble our efforts at the state and local level once ratification is achieved. Ultimately, Bond may confirm what Justice Stevens noted in Medellin v. Texas: when it comes to upholding the U.S.’s international treaty commitments, sometimes state and local officials “must shoulder the primary responsibility.” For better or worse.