Chemical Weapons Convention Implementation

Constitutionality of U.S. Statute Implementing the Chemical Weapons Convention in 2013 (Continuation)

United States views on international law [1] in relation to Constitutionality of U.S. Statute Implementing the Chemical Weapons Convention: The Court accordingly rejected Missouri's argument that “a treaty cannot do” “what an act of Congress could not do unaided.” Holland, 252 U.S. at 432. The Court explained that while “the great body of private relations usually fall within the control of the State,” “a treaty may override its power” according to the express design of the Constitution. Id. at 434-435. The Migratory Bird Convention did not “contravene any prohibitory words to be found in the Constitution,” and the implementing statute, which closely tracked the treaty, was “a necessary and proper means to execute the powers of the Government.” Id. at 431-433. The Court found compelling practical reasons for the Founders' conferral of a broad Treaty Power on the federal government because treaties often deal with matters of the “sharpest exigency for the national well being.” Holland, 252 U.S. at 433. And observing that the Constitution expressly renders States “incompetent to act” on treaties, the Court further explained that it was “not lightly to be assumed that, in matters requiring national action, 'a power which must belong to and somewhere reside in every civilized government' is not to be found.” Ibid. (citation omitted).

More about Constitutionality of U.S. Statute Implementing the Chemical Weapons Convention

ii. Holland makes clear that Section 229 is a necessary and proper effectuation of U.S. treaty obligations. Petitioner contends that the Court in Holland affirmed the Migratory Bird Convention only after weighing for itself “the relative national and state interests” at stake. That is incorrect. The Court noted that “the great body of private relations usually fall within the control of the State” and held as a categorical matter that “a treaty may override its power.” 252 U.S. at 434 (citing eight decisions of this Court in support); see id. at 432 (supporting same rule based on text and structure of Constitution). The Court later observed that “a national interest of very nearly the first magnitude” was involved in the Migratory Bird Convention and that Missouri's interest was insubstantial, id. at 435, but it nowhere suggested that its holding depended on a balancing of these interests. And petitioner points to no decision of this Court invalidating an exercise of the Treaty Power through application of any such balancing test.

Development

In all events, Holland's discussion of the Migratory Bird Convention itself is not directly relevant to petitioner's claim because petitioner here concedes that the CWC is valid. Petitioner nonetheless appears to argue that Holland's determination that the implementing legislation was constitutional is inapplicable here because in Holland there was a “tight nexus between the treaty and the legislation.” But the same “tight nexus” is present here. Upholding the application of the Act to petitioner's conduct does not imply a general “police power” to legislate solely to “protect the public” or safeguard “public safety.” Kebodeaux v. United States, 133 S. Ct. 2496, 2507 (2013) (Roberts, C.J., concurring in the judgment) (citation omitted). Rather, the Act aims at distinctly international and national concerns embodied in a valid treaty: the attainment of a global scheme to protect against the malicious use of chemical weapons while preserving beneficial, socially desirable uses and commerce—aims vital to national security. Even assuming the Necessary and Proper Clause applies identically to treatyimplementation legislation as to other legislation, this Court's recent decisions on the scope of Congress's necessary-and-proper power in the domestic context leave no doubt that Section 229 was constitutionally applied to petitioner. E.g., United States v. Comstock, 130 S. Ct. 1949 (2010). Analysis under that precedent also refutes petitioner's suggestion that upholding her conviction would imply a limitless congressional power to legislate on all local matters, thereby displacing state authority. …

Details

First, the Constitution “grants Congress broad authority to enact federal legislation,” Comstock, 130 S. Ct. at 1956, and that principle applies no less here than elsewhere. Indeed, federal authority is at its apex on matters related to foreign affairs. Curtiss-Wright, 299 U.S. at 315-318. Second, Section 229 adds incrementally to pre-existing and extensive federal regulation of harmful chemicals, cf. Comstock, 130 S. Ct. at 1958-1961, and implements a treaty on weapons—a quintessentially international subject matter. Third, Congress's judgment to adopt penal legislation that mirrored the terms of the Convention and thus regulated comprehensively was plainly reasonable. Cf. id. at 1961-1962. Fourth, the statute does not displace the authority of the States. Cf. id. at 1962-1963. Pennsylvania remained free to prosecute petitioner, Heath v. Alabama, 474 U.S. 82, 88 (1985) (dual sovereign doctrine), …. Fifth, “the links” between the Act and the Treaty Power “are not too attenuated.” Comstock, 130 S. Ct. at 1963. Indeed, the prohibition at issue here “closely adheres to the language of the … Convention,” which itself addresses a matter at the historical core of treaty-making. The statute's links to the treaty are tangible, direct, and strong. Comstock, 130 S. Ct. at 1967 (Kennedy, J., concurring). Accordingly, under Comstock's analysis, Section 229 is valid necessary-and-proper legislation, and upholding it does not remotely suggest that “any one government [has] complete jurisdiction over all the concerns of public life.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011). iii. In the more than two centuries of American history, this Court has never invalidated Congress's implementation of a treaty on federalism grounds. In declining to do so, Holland articulated a settled understanding announced and applied by this Court in numerous cases before and after Holland itself. Holland, 252 U.S. at 434 (citing earlier cases); see Lara, 541 U.S. at 201 (citing Holland); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172,204 (1999) (citing Holland); Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 691-692 (1979) (citing Holland); Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) (citing Holland); Asakura v. City of Seattle, 265 U.S. 332, 341 (1924) (citing Holland).

More

3. There is no basis for overruling Holland The Court should reject petitioner's invitation to overrule Holland. This Court has “always required a departure from precedent to be supported by some 'special justification.'” United States v. IBM Corp., 517 U.S. 843, 856 (1996) (citation omitted). No such special justification is present here. And “[s]tare decisis has added force” when the Political Branches have “acted in reliance on a previous decision.” Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991). Since the founding, U.S. diplomats have negotiated with foreign powers armed with the assurance that the United States possesses the authority to ensure implementation of its treaty obligations, even in areas generally reserved to the States. a. The rule articulated in Holland (and applied repeatedly by this Court both before and after) has not proven “unworkable in practice.” Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768, 783 (1992) (citation omitted). To the contrary, the Nation's experience with treatymaking demonstrates that the Framers did not envision a judicially enforceable “too local” limit on congressional power to implement a treaty and were correct in their conclusion that requiring both Presidential approval and the concurrence of two-thirds of the Senate would provide robust protection for the interests of the States in the treaty-making process. And to enact implementing legislation, the House of Representatives must also agree to the new law, thus providing another layer of safeguards. The Senate has frequently imposed conditions or reservations on treaties to reflect federalism concerns. E.g., United Nations Convention Against Corruption, S. Exec. Rep. No. 18, 109th Cong., 2d Sess. 9 (2006) (resolution of advice and consent) (“The United States of America reserves the right to assume obligations under the Convention in a manner consistent with its fundamental principles of federalism.”)…

Resources

Notes

1. Constitutionality of U.S. Statute Implementing the Chemical Weapons Convention in Digest of United States Practice in International Law