TheBondCourt’s Institutional Truce

Monica Hakimi

doi:10.1017/s2398772300001926

Abstract

As many readers are aware,Bond v. United Statesis a quirky case. The federal government prosecuted under the implementing legislation for the Chemical Weapons Convention (CWC) a betrayed wife who used chemical agents to try to harm her husband’s lover. The wife argued that, as applied to her, the implementing legislation violated the Tenth Amendment. She thus raised difficult questions about the scope of the treaty power and of Congress’s authority to implement treaties through the Necessary and Proper Clause. TheBondCourt avoided those questions with a clear statement rule: “we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.” This resolution betrays the Court’s ambivalence about the appropriate limits of the treaty power and about the Court’s own capacity to define those limits.

Highlights

As many readers are aware, Bond v
The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.”[2]. This resolution betrays the Court’s ambivalence about the appropriate limits of the treaty power and about the Court’s own capacity to define those limits
Justice Thomas’ opinion focuses on the treaty power itself. He argues that the treaty power may be used to “arrange intercourse with other nations, but not to regulate purely domestic affairs.”[8]. But Thomas “acknowledge[s] that the distinction between matters of international intercourse and matters of purely domestic regulation may not be obvious in all cases.”[9]. And he does not explain why the task of identifying the issues that are suited for international regulation falls to the Court

Summary

Introduction

As many readers are aware, Bond v. The Bond Court avoided those questions with a clear statement rule: “we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.”[2] This resolution betrays the Court’s ambivalence about the appropriate limits of the treaty power and about the Court’s own capacity to define those limits.

Results

Conclusion