THE BLOG
06/13/2014 11:31 am ET Updated Aug 13, 2014

The Impotent Plenipotentiary

Legal doctrine has spawned many a colorful character. The fertile octogenarian. (Her hypothetical existence bars certain restrictions on transfers by will.) The unborn widow. (She too prevents some bequeathals.) And now in the case of Bond v. United States, Justice Antonin Scalia's opinion about the status of treaties as domestic law has added to the quirky cast a tragic figure: the impotent plenipotentiary.

According to the Supremacy Clause of the Constitution, "all Treaties made, . . . under the Authority of the United States, shall be the supreme Law of the Land . . . ." In other words, treaties not only create international obligations but also constitute internal law enforceable in federal and state courts. Actualizing that promise sometimes entails preliminary logistical action. Under Supreme Court doctrine, the intent of the parties to a treaty controls whether, once ratified, it takes effect within the United States immediately. If not, the treaty is "non-self-executing" and requires legislation by Congress to "execute" it as domestic law. In the land of Justice Scalia, that political hurdle may be insurmountable--and thus the constitutional guarantee of supremacy unfulfilled--because, he maintains, Congress may lack the requisite power.

In the Bond case, decided last week, Scalia repudiated Congress's power to execute a treaty about chemical weapons. But congressional authority to take the mechanical steps necessary to establish treaty norms as the law of this land inheres in the Supremacy Clause and was confirmed by the Supreme Court a century ago.

In 1913, in a purely domestic context, federal courts struck down a legislative restriction on the hunting of migratory birds because that subject was inappropriate for "national legislation." So the United States tried international legislation, entering into a treaty with Great Britain to the same effect. (The birds in question migrated between the United States and Canada, which was still subject to British control of its foreign affairs.) The parties agreed to "take, or propose to their respective appropriate law-making bodies, the necessary measures for insuring the execution of the present Convention." Congress did just that with the Migratory Bird Treaty Act. Claiming an infringement on states' rights, Missouri sued to stop a federal conservation officer from enforcing the statute. But in the landmark 1920 case of Missouri v. Holland, the Supreme Court upheld its constitutionality.

Citing the Supremacy Clause, Justice Oliver Wendell Holmes explained that "[i]f the treaty is valid there can be no dispute about the validity of the statute . . . as a necessary and proper means to execute the powers of the Government." It was "obvious," Holmes wrote, "that there may be matters . . . that an act of Congress could not deal with but that a treaty followed by such an act could . . . ." Thus it became settled that even when Congress lacks unilateral authority to legislate on a certain topic, it has the power to do so when implementing a treaty as domestic law of the land.

In the 1950s, a threat to that understanding arose. Ohio Senator John Bricker, the 1944 Republican vice-presidential nominee who had tarred Franklin Roosevelt as a "Communist," launched a sustained isolationist effort to minimize the impact of treaties. Bricker's attitude toward treaties had surfaced in his opposition to the United Nations' proposed International Covenant on Human Rights; in view of the treaty's attempt to bind sovereigns, he submitted that a more apt title would be "Covenant on Human Slavery." Bricker proposed a constitutional amendment whose core provision would overrule Missouri v. Holland by abrogating the Supremacy Clause: "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty." The Senate voted 61-30 in favor of the amendment--one short of the two-thirds necessary to move toward ratification.

Last week, Justice Scalia cast his judicial vote Bricker's way. The Bond case concerned the Convention on Chemical Weapons, a treaty barring their production, storage, and use. The treaty is non-self-executing; each signatory nation agreed to "adopt the necessary measures to implement its obligations," including the enactment of criminal law to govern individuals. Congress executed the treaty domestically through the Chemical Weapons Convention Implementation Act of 1998. Lifting language straight from the treaty, the statute criminalized the use, other than for a "peaceful purpose," of "any chemical which . . . can cause death, temporary incapacitation or permanent harm to humans or animals."

The case before the Supreme Court arose from a cinematic drama that was more local farce than international intrigue. Carol Bond, a microbiologist, stole some arsenic from her employer and ordered a vial of potassium dichromate from Amazon.com. She used the chemicals for the decidedly non-peaceful purpose of revenge against a romantic rival. Diamonds may be forever, but apparently a best friend lasts only until impregnated by one's husband. Bond had no view to a kill; she spread the chemicals merely with the intent of inflicting a rash. Instead, the victim suffered a minor burn on her thumb, treating it with water. Coldfinger?

Bond's '007 arrest led to a conviction the following year under the Chemical Weapons Convention Implementation Act. Although the words of the statute arguably covered her conduct--the chemicals she wielded could have caused more harm than they did--a majority of the Supreme Court interpreted them contextually, holding that the federal law did not apply to garden-variety crimes better suited for state prosecution. Justice Alito had set the tone at oral argument, noting that a literal reading would be absurd because the potential to poison dogs would qualify chocolate as a "chemical weapon."

Justice Scalia, in a concurring opinion (joined by Justice Clarence Thomas), agreed that Bond's conviction should be overturned, but not because he embraced a reasonable interpretation of the statutory language. To him, Bond had used "chemical weapons" as defined by Congress and thus violated the statute. Instead, Scalia wanted to reverse the conviction on the ground that Congress had exceeded its constitutional power. Having branded Bond as a chemical weapons user, he proceeded to do more harm to Missouri v. Holland than she had done to her BFF-OUCH (Best Friend Forever-Or Until Conceives with Husband).

On the question of whether acts of Congress are within constitutional bounds, Justice Scalia declared, treaties are irrelevant. If a federal statute criminalizing the use of common chemicals would (as he implied) be an impermissible intrusion on states absent a treaty, cloaking it in a treaty's mantle could not save it. And so the implementation of the Convention on Chemical Weapons as domestic law was a nullity.

Nothing in the Constitution, Justice Scalia insisted, suggested otherwise. Not even the clause relied on by Justice Holmes that empowers Congress to "make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested . . . in the Government of the United States . . . ." That provision does allow Congress to facilitate the power to make treaties, in Scalia's view; for example, he offered, Congress could hire spies to report on other nations' deliberations. But enacting legislation to effectuate the norms of already-made treaties as law of the land? The answer, to Scalia, was an "obvious" no: what Congress may "carr[y] into Execution" is merely the treaty-making power, not (without independent justification) a treaty itself.

Expatiate though he did about the "seismic" distinction between those two hairs, Scalia ignored the Supremacy Clause--the one enshrining treaties as law of the land. In light of that provision, inherent in the treaty-making power is the power to establish law not only internationally but also internally. It is one thing to say, as the Supreme Court often does, that some treaties, though validly ratified after negotiation by the executive branch and approval by a Senate supermajority, must run the full congressional gauntlet before attaining the status proclaimed by the Supremacy Clause. It is another to say that Congress, despite its constitutional capacity to enact laws "necessary and proper" for implementing the federal government's powers, lacks the power to make such treaties the law of the land.

But that catch-22 is the law of Scalialand, where chemical weapons are one click away and lexical nuances shake the earth. The executive branch of the federal government may think globally, concluding valid treaties on matters of legitimate international concern, only to find that its own legislature has no authority to act locally. Scalia's vision is not of a healthy separation of powers; it is of utter powerlessness.

Justice Scalia's mind remains fertile as he nears octogenarianity. We may marvel at his creativity in conjuring up the impotent plenipotentiary. But just as Scalia will never be an unborn widow, he appears unlikely--regardless of any (en)treaties--to assume the role of legal doctrine's most indispensable character: the reasonable person.