My friend and predecessor Edwin Williamson (who served as The Legal Adviser in the George H.W. Bush Administration) has written in with comments about my post on the Bond case. Although I do not agree with Edwin’s characterization of my brief (that Congress is free to pass any legislation that purports to execute a valid treaty — I do think the implementing legislation must be necessary to implement the treaty and not otherwise inconsistent with other Constitutional provisions, e.g., the First Amendment), I have reprinted his response below:
I largely disagree with John’s post because it describes only two outcomes that the Court is being urged to reach. The first position is the one put forth by the U.S. government, and is supported by the amicus brief organized by John and submitted by some former State Department Legal Advisers, which—for reasons that will become clear—did not include me. According to this position, given a valid, non-self-executing treaty, Congress is free to pass any legislation that purports to execute a treaty, even if elements of the legislation are not necessary to the implementation of the U.S.’s obligations under the treaty. Any holding to the contrary would limit the President’s treaty-making power. The second position is put forward by some conservatives, and is perhaps best exemplified in an amicus brief submitted by Nick Rosenkranz and others: Congress cannot enact legislation that executes a treaty unless it is acting within one of the powers enumerated in Article I, and therefore, Missouri v. Holland should be overruled.
In fact, though, there is a third argument: the one put forward by Paul Clement on behalf of Ms. Bond. According to this argument, the legislation implementing the CWC as applied to Ms. Bond is unconstitutional because it is an exercise of police power in respect to a “local” event with no national or international nexus. I emphasize the nexus modifier, because it was continually left out by others when they tried to summarize Paul’s argument, including in the U.S. government brief, in the Solicitor General’s oral argument, and in the Legal Advisers’ brief. Because the implementing legislation, as applied to Ms. Bond, has nothing to do with the U.S.’s obligations under the CWC, it cannot be justified under the Necessary and Proper Clause, and it would not limit the President’s treaty-making power in the slightest if the Court held accordingly.I have asked John and the former Legal Advisers who joined his brief if they would have reported Ms. Bond’s use of toxic chemicals under Article IV(9) of the CWC ). None indicated that they would have done so.
With respect to Nick Rosenkranz’s argument, such a holding would not implicate Missouri v. Holland. It would neither require an overruling nor constitute an expansion. For this case to be similar to Missouri v. Holland, in that case the U.S. government would have had to have applied federal hunting rules not only to migratory birds, such as ducks, but also to non-migratory birds, such as quail.
I also cannot resist pointing out that while Justice Kagan did refer to the Legal Adviser brief, so did the Chief Justice, who essentially dismissed it as a predictable assertion by the State Department in an effort to expand its power to negotiate treaties.
The case also raised two other interesting issues in addition to the one before the Court:
(1) There was a surprising claim, made most strongly by Justice Sotomayor, that it was difficult to find Ms. Bond’s prosecution unconstitutional, but at the same time pursue chemical weapons charges against the Assad regime in Syria. I have no problem distinguishing Assad’s use of chemical weapons from Ms. Bond’s use of readily available toxic chemicals to achieve a “minor thumb burn.”
(2) Some Justices (particularly Justice Scalia) and some conservatives (such as Nick) have asserted, in effect, that the treaty-making power of the President is greater with a self-executing treaty, approved by a two-thirds majority of the Senate, than it is with a non-self-executing treaty that must be implemented by legislation adopted by a majority of both houses of Congress. This perspective makes little sense, and it would be great to see more discussion of this issue, as well as of the scope of the treaty-making power more generally.