Implementing the Chemical Weapons Convention

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

United States views on international law [1] in relation to Constitutionality of U.S. Statute Implementing the Chemical Weapons Convention: (As reviewed in this legal encyclopedia in relation to international law issues in the year 2012) at 97-100, the United States filed a brief in the U.S. Supreme Court in opposition to the petition for certiorari in Bond v. United States, No. 12-158. The petitioner, Carol Anne Bond, was convicted of using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1). Closely tracking the language of the Chemical Weapons Convention, Section 229 criminalizes “knowingly” “possess[ing]” or “us[ing]” a “chemical weapon.” Petitioner had used two toxic chemicals to attempt to poison another woman who had become pregnant as a result of an affair with petitioner's husband. Among the issues raised on appeal was whether “local” conduct such as petitioner's is the proper subject of the Treaty Power. The U.S. Court of Appeals for the Third Circuit held, on appeal of the case in 2012, that the U.S. statute implementing the Chemical Weapons Convention is a valid exercise of Congress's Treaty Power under the Constitution. See this world legal encyclopedia (in relation to issues that took place in the year 2011) at 111-17 for excerpts from U.S. briefs submitted in the court of appeals. The U.S. Supreme Court granted the petition for certiorari. The United States filed its brief in the Supreme Court on August 9, 2013. Excerpts below (with footnotes and citations to the record omitted) include the argument that the application of the statute to Ms. Bond was authorized by Congress's power to enact laws necessary and proper to execute the Treaty Power. The brief is available at As the court of appeals held, Congress had the authority to prohibit petitioner's conduct under its power under the Necessary and Proper Clause to implement a treaty. That authority is broad in order to achieve its purpose: empowering the Nation to carry out its international legal commitments in furtherance of U.S. foreign policy and national security goals.

Petitioner concedes that the Convention itself is “valid,” …

Some Aspects of Constitutionality of U.S. Statute Implementing the Chemical Weapons Convention

“Instead, [petitioner] is raising a much more limited and narrowly focused as-applied challenge,” contending that the facially valid Act, implementing a valid treaty, “cannot be constitutionally applied to her in the circumstances of this case.” According to this argument, any particular application of treaty-implementing legislation can be successfully challenged as unconstitutional if the particular judge concludes that the application involves “local” activities. Moreover, petitioner contends that this is such a case, and that her conviction should therefore be set aside. Petitioner is mistaken. There is simply no basis in the Constitution, history, or this Court's precedents for carving out particular applications of a facially valid statute that implements a valid treaty on the ground that the conduct at issue is too local. 1. The Treaty Power is exclusively federal The Treaty Clause grants the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” U.S. Const. Art. II, § 2, Cl. 2. Unlike the various “legislative Powers” specifically enumerated in Article I, Section 8, the Constitution assigns the Treaty Power to the President and Senate as a separate “Article II power.” United States v. Lara, 541 U.S. 193, 201 (2004). The Supremacy Clause, in turn, provides that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” U.S. Const. Art. VI, Cl. 2. Thus, it is well-established that the Treaty Clause allows the federal government “to enter into and enforce a treaty *** despite state objections” and that a valid treaty preempts inconsistent state law. Kleppe v. New Mexico, 426 U.S. 529, 545 (1976).

Developments

The Constitution expressly makes the federal grant of treaty-making authority exclusive by prohibiting States from “enter[ing] into any Treaty, Alliance, or Confederation.” Art. I, § 10, Cl. 1; see id. Cl. 3 (prohibition on States' entering into “any Agreement or Compact” with a foreign power without first obtaining the consent of Congress). Moreover, “the treaty-making power was never possessed or exercised by the states separately; but was originally acquired and always exclusively held by the Nation, and, therefore, could not have been among those carved from the mass of state powers, and handed over to the Nation.” George Sutherland, Constitutional Power and World Affairs 156 (1919) (Sutherland); see generally United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 315-318 (1936) (Curtiss-Wright). Thus, the Tenth Amendment's reservation of rights to the States is “no barrier” to the adoption of treaties and to the enactment of treaty-implementing legislation. Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion). Although the Treaty Clause “does not literally authorize Congress to act legislatively,” Lara, 541 U.S. at 201, the Necessary and Proper Clause empowers Congress to enact “Laws” that are “necessary and proper for carrying into Execution” all powers conferred in the Constitution, including the Treaty Power, Art. I, § 8, Cl. 18. Accordingly, while treaties are the supreme law of the land under the Supremacy Clause, when “treaty stipulations are not selfexecuting they can only be enforced pursuant to legislation to carry them into effect.” Medellin v. Texas, 552 U.S. 491, 505 (2008) (brackets and citation omitted); see Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829).

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2. It has long been settled that the Treaty Power extends to matters ordinarily within the jurisdiction of the States The court of appeals correctly held that Congress's prohibition of petitioner's conduct was an appropriate exercise of its Necessary and Proper authority to implement a treaty and did not implicate any other constitutional constraints. The Constitution's text, structure, and history, as well as longstanding treaty practice and an unbroken line of precedents, both before and after Missouri v. Holland, 252 U.S. 416 (1920), all support that conclusion. a. Petitioner's argument that the federal government cannot effectuate its treaty obligations if doing so would result in regulation in areas of traditional state authority has been advanced—and rejected—numerous times since the Founding. i. Framing of the Constitution. The national government's inability to ensure treaty compliance—and need to rely on the States when attempting to do so—were among the principal defects in the Articles of Confederation that led to adoption of the Constitution. Under the Articles of Confederation, Congress concluded numerous treaties, but because it lacked the necessary authority to enact laws to implement them, it typically passed resolutions urging the state legislatures to do so. Samuel B. Crandall, Treaties: Their Making and Enforcement 37-38 (2d ed. 1916) (Crandall). The States routinely ignored these resolutions. Id. at 39-42. … Other nations also expressed reluctance to enter into agreements with the United States because they lacked confidence in the American government's power to implement binding agreements, given the need for state implementation. … Given this experience, the Framers viewed the inability of Congress to prevent the breach of treaties as one of the chief defects of the Articles of Confederation. Crandall 49, 51…

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The Constitution addressed the federal government's impotence under the Articles of Confederation to ensure treaty compliance by assigning the treaty-making power exclusively to the federal government and by ensuring that the power was “disembarrassed *** of an exception [in the Articles of Confederation], under which treaties might be substantially frustrated by regulations of the States.” The Federalist No. 42, at 211 (James Madison). At the same time, the Framers chose not to impose subject-matter limitations on the Treaty Power because “[t]he various contingencies which may form the object of treaties, are, in the nature of things, incapable of definition.” 3 Elliot's Debates 363 (Edmund Randolph); see id. at 504 (Edmund Randolph). The Framers safeguarded the interests of the States by requiring that treaties be approved by two-thirds of the Senate, which they saw as the protector of State sovereignty given the States' equal representation and the fact that Senators were (at that time and until ratification of the 17th Amendment in 1913) chosen by state legislatures. …

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b. This Court's decision in Missouri v. Holland, 252 U.S. 416 (1920) (Holmes, J.), rearticulated this well-established understanding of the Treaty Power and demonstrates why Section 229 falls squarely within the federal government's authority to ensure compliance with its treaty obligations. i. In the Convention for the Protection of Migratory Birds, U.S.-U.K., Aug. 16, 1916, 39 Stat. 1702 (Migratory Bird Convention), the United States and Great Britain mutually agreed to protect certain species of birds that, in their annual migrations, crossed between the United States and Canada. The treaty further provided that each country would “propose to their respective appropriate law-making bodies, the necessary measures for insuring the execution” of the treaty, art. VIII, which the United States accomplished through the Migratory Bird Treaty Act, ch. 128, 40 Stat. 755. That statute prohibited the killing, capturing, or selling of any of the migratory birds included within the terms of the treaty except as permitted by certain regulations. Missouri argued that “the statute [was] an unconstitutional interference with the rights reserved to the States by the Tenth Amendment” and sought to enjoin its enforcement. Holland, 252 U.S. at 430-431. The Court explained that “[t]o answer this question it is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States,” because the Constitution “delegated expressly” the treaty-making power to the national government and provided that such treaties were “the supreme law of the land.” Id. at 432 (citing U.S. Const. Arts. II, § 2, and VI).

Resources

Notes

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