“We are one Nation today, & thirteen tomorrow,” George Washington wrote to James McHenry in 1785. “Who will treat with us on such terms?”
Weirdly enough, Washington’s words have become entwined in a Ricki Lake-style fight in Pennsylvania involving marital infidelity, betrayed friendship, and toxic chemicals smeared on a mailbox. There is a danger that in its bemusement at the pathetic facts of Bond v. United States, the Supreme Court will lose sight of Washington’s wisdom. Some fairly influential voices are whispering to the Court that the first president wasn’t really serious about being one nation in foreign affairs.
Like many in the Founding generation, Washington feared that the new nation, having won the Revolution, was fumbling away its chance for independence. Britain had grudgingly agreed to the Treaty of Paris in 1783, but the document required the states to restore money and property seized from British subjects during the Revolution. States legislatures and courts, however, wouldn’t go along. As a result, Britain was refusing to hold up its end of the treaty. It left its military forces in the Ohio Valley, defying the treaty’s terms. Those troops’ intentions were not clear, but they weren’t there to help the new country expand.
The U.S. had given its word in Paris, but it couldn’t keep it—the confederation “government” lacked sufficient powers. “Without them, we stand, I conceive, in a ridiculous point of view in the eyes of the Nations of the Earth, with whom we are attempting to enter into Commercial Treaties without means of carrying them into effect,” Washington wrote. Today, as in 1787, if the United States cannot reach binding agreements with foreign nations, then the U.S. is not really a country in the international sense.
The Framers of the Constitution tackled this problem head on. In Article II § 2 cl. 2, they gave the president and the Senate together the power to make treaties, “provided two thirds of the Senators present concur.” And Article VI § 2 made those treaties “the supreme law of the land,” on a par with the Constitution and valid federal statutes, and superior to state law.
The Treaty Power, on the whole, has served the nation well, especially during the years since World War II, when the U.S. have vaulted to world leadership in a system of multilateral treaties that have created the United Nations and NATO, guaranteed human rights, and outlawed crimes like torture and the use of chemical weapons.
The mention of the United Nations Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons brings us to the Carol Anne Bond, a 42-year-old microbiologist severely disappointed in love. Bond, who worked at a chemical facility near Philadelphia, was infuriated when her best friend, Myrlinda Haynes, became pregnant by Bond’s husband. In revenge, she obtained a number of toxic chemicals—some from Amazon and some from her workplace—and smeared them on surfaces at Haynes’s home and on her car. Haynes evaded the bright-orange chemicals, once suffering a nasty thumb burn, and asked local police for help; the cops investigated her as a possible drug lord, then walked away. But since Bond had smeared Haynes’s home mailbox (federal property, y’know), agents of the Postal Service planted security cameras, and Bond was nabbed orange-handed.
A rather zealous U.S. attorney indicted Bond for theft of mail and violating the Chemical Weapons Convention Implementation Act of 1998. That statute makes violating the Chemical Weapons Convention a crime under U.S. law, as required by the treaty.
On November 5, Bond, represented by conservative superlawyer Paul Clement, will tell the Supreme Court that the Act shouldn’t apply to her. In the first go-round, also styled Bond v. United States, she challenged a lower-court holding that, as a criminal defendant, she couldn’t rely on Pennsylvania’s “rights” under the Tenth Amendment. The idea was that the Act entrenched on the power of the state by making “garden-variety” crime a federal offense. But the Third Circuit told her the amendment protected states, not defendants. Thus only a state could raise the issue, and she had no "standing" to raise the state's prerogatives as a defense. The Court reversed the Third Circuit, saying that she could raise the Tenth Amendment. When the case was remanded, she did, and the circuit court held that the statute and the prosecution don't violate the Tenth Amendment.
Now Bond is back, arguing the Court should either construe the statute not to cover her crime (thus avoiding the constitutional issue), or take a big bite out of the Treaty Power. They argue that Congress couldn't have made Bond's crime a federal crime without the treaty, since—like possessing guns in schools—it was just ordinary state-level crime. “If section 229 really extended to [Bond’s crime], then it clearly would exceed Congress’ limited and enumerated powers,” her brief argues. “[T]he government’s argument would allow the agreement of the President, the Senate, and a foreign nation to render the Framers’ careful process of enumerating Congress’ limited powers for naught.”
Pretty scary, right?
But it’s even worse than that, according to a brief filed by the Cato Institute, the libertarian think-tank that often serves as Court conservatives’ idea incubator. To Cato, the long-standing doctrine of the Treaty Power “implies, insidiously, that the President and the Senate can increase their own power by treaty.” Beyond that, “it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.”
The brief's tone echoes that of the so-called Anti-Federalists who fought the Constitution in 1787-88—opposed it not least because they feared that "insidious" elites would conspire with foreigners to rob the states and the people of their liberties. This conspiracy among a president, senators, and a foreign leader—how likely is it? Do you really lie awake worrying that the president and 67 senators will secretly conspire with President Xi Jinping of China (the leading producer of broccoli) to spring the Cruciform Vegetables Treaty, requiring three helpings a day, on an unsuspecting nation?
Compared to this scenario, the idea that bike-share programs are a U.N. plot is positively sober.
One can feel a bit of impatience with the federal prosecutor who decided use of chemical weapons was the right charge to bring against a troubled woman. (Perhaps we might feel differently if she had used toxic chemicals to attack a school or a government building.) But that impatience shouldn’t blind us to the danger of what the Court is being asked to do.
Many things about the Constitution are ambiguous, but the Framers clearly centralized all power over foreign relations. States are forbidden to negotiate with or sign agreements with foreign governments; only the government as a whole—that is, the president and the Senate together—can bind the nation.
The talk of “the Framers’ careful process of enumerating Congress’ limited powers” is misleading. The Treaty Power in fact is a carefully enumerated power—and it is not a power of the mere Congress for which this Court feels such disdain, but of the nation as a whole, acting through its two political branches. Missouri v. Holland, the leading case on the Treaty Power, upheld a federal law regulating the hunting of migratory birds within states, passed by Congress to honor a treaty with Britain, which then ruled Canada. In a 7-2 opinion, Justice Oliver Wendell Holmes wrote:
[w]e do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way [than an argument that regulating birds was beyond Congress’ powers]. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is 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.
No one believes there are “no limits” to the power of the government to enter into treaties and enforce them. The Constitution’s text provides them. The president and Senate couldn’t, for example, agree to impose dictatorships on the states, or to carve new states out of existing ones, or to repeal the Bill of Rights. But textual limits are one thing; what Holmes ridiculed as “some invisible radiation from the general terms of the Tenth Amendment,” or some paranoid suspicion of foreign powers, are another. Even where “traditional” areas of state authority are at stake, the burden should be on those who claim that some national act is “beyond” the Treaty Power.
Bond’s fate is of little concern to anyone involved. If there is any reasonable way to let her live out her life in peace, the Court should take it. But even this conservative Court might, I think, hesitate before using these odd facts to enfeeble a power that Washington, Madison, and Hamilton sought so urgently. The day may come, and soon, when we need to appear before the world as one nation, not 50—clothed in the dignity of a “civilized government,” not “in a ridiculous point of view.”