Bond v. United States and Congress’s Role in Implementing Treaties

William S Dodge

doi:10.1017/s2398772300001914

Abstract

Bond v. United States had long been anticipated as the case in which the Supreme Court would revisit Missouri v. Holland (1920) and limit Congress’s authority to implement treaties. In the event, the Court did nothing of the kind. Only three Justices would have recognized judicially enforceable limits on the Treaty Power (Thomas, joined by Scalia and Alito, concurring in the judgment), and only two would have adopted the crabbed reading of the Necessary and Proper Clause advocated by Professor Nicholas Rosenkranz (Scalia, joined by Thomas, concurring in the judgment).

Highlights

Three Justices would have recognized judicially enforceable limits on the Treaty Power (Thomas, joined by Scalia and Alito, concurring in the judgment), and only two would have adopted the crabbed reading of the Necessary and Proper Clause advocated by Professor Nicholas Rosenkranz (Scalia, joined by Thomas, concurring in the judgment).[2]
Roberts characterized Carol Anne Bond’s unsuccessful attempt to harm her husband’s lover with toxic chemicals as “a purely local crime”[3] that would normally be left to the State, rather than the sort of offense the Chemical Weapons Convention Implementation Act was designed to address
The Chief Justice was not willing to trust the prosecutorial discretion of the federal executive to moderate the broad scope of the Act, he noted that the federal government had generally acted responsibly[4] and he had nice things to say about the prosecutorial discretion of state officials.[5]

Summary

Introduction

The majority opinion, written by Chief Justice Roberts, avoided these constitutional questions and decided the case on narrow, statutory-interpretation grounds.

Results

Conclusion