Bond, Clear Statement Requirements, and Political Process

Abstract

In its decision yesterday in Bond v. United States, the Supreme Court carefully avoided addressing either the constitutional scope of the treaty power or the scope of Congress’s constitutional authority to implement treaties under the Necessary and Proper Clause. The decision is nevertheless important in holding that a federalism-based clear statement requirement, which was originally developed in the context of purely domestic legislation, applies even to legislation implementing a treaty. It also signals more generally (as had earlier decisions such as Medellín v. Texas) that the Court will be attentive to federalism values even in cases involving foreign affairs. In this post, I will highlight both a process point in support of the Court’s clear statement approach and a potential drawback of that approach. I conclude with some miscellaneous observations about the decision.