Supremacy and Federalism: Treaty Power under the Necessary and Proper Clause

The jurisprudence of federalism has an infrequent impact on American foreign policy. The American Constitution reserves to the President and Congress the authority to handle virtually all matters of foreign policy; indeed, the ability to create and enforce a unified foreign policy was one of the core rationales for abandoning the Articles of Confederation and adopting the Constitution. On January 18, however, the Supreme Court granted certiorari in Bond v. United States[1], and by the end of May could potentially decide where the constitutional limit exists on Congress’ ability to enforce a treaty.

Image courtesy of Phil Roeder, © 2011, some rights reserved.

Image courtesy of Phil Roeder, © 2011, some rights reserved.

The issue at stake in Bond II is fairly simple. Carol Bond, an employee of a chemical manufacturer, discovered that her friend was pregnant and her husband was the father. Her response was to attempt to poison the pregnant friend. The chemicals she used were controlled under the Chemical Weapons Convention (CWC) and their use in the United States criminalised pursuant to the Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. §229. Bond pled guilty to federal charges while reserving the right to challenge the constitutionality of 18 U.S.C. §229 as applied. She took her case to the Third Circuit arguing that her case presented a question outwith the powers of Congress and within the police power of the state governments; the Third Circuit applied the relevant precedent and affirmed the conviction. Bond sought Supreme Court review.

The relevant precedent was Missouri v. Holland, 252 U.S. 416 (1920). Holland broadly stands for the principle that where the President has entered and the Senate has ratified a valid treaty, Congress may implement the provisions of the treaty regardless if the implementing instrument would be ultra vires under the enumerated powers of Article I[2]. Justice Holmes, writing for the majority, crafted a sweeping interpretation of the treaty power: ‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, §8, as a necessary and proper means to execute the powers of the Government’, 252 U.S. 416, 432. The Court subsequently distinguished between the question of structural bounds on the treaty power and rights-based bounds in Reid v. Colvert, 354 U.S. 1 (1957), holding that the treaty power does not enable Congress to ignore the Bill of Rights in implementing a treaty. With some limitations, however, Holland has stood as the bedrock of the scope of Congressional authority to implement treaties[3].

The underlying question the Court will address in Bond II is, thus, ‘Can a treaty grant Congress the authority to act beyond the structural limits on its powers?’  Both the drafting history of the Constitution and the interaction of the Treaty, Supremacy, and Necessary and Proper Clauses answer a definitive affirmative. As the Court held in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936), ‘[T]he federal power over external affairs [is] in origin and essential character different from that over internal affairs’ and that difference frees treaty implementation from the bounds of federalism.

Federal treaty powers are at the very heart of the Constitution. When thirteen colonies, united only by a weak confederation, ratified the Treaty of Paris in 1783 and ended the Revolutionary War, they agreed to conditions that they were incapable of enforcing. That lack of enforcement pushed the British to maintain forts in the western reaches of American territories, posing a danger to the national security and providing the clearest impetus to abandon the Articles of Confederation framework. John Jay, writing as Publius in Federalist No. 3 following the Philadelphia Convention, argued in favour of the ratification of the Constitution, described the new constitutional order of one in which the national government would have exclusive control over treaties: ‘[U]nder the national government, treaties…will always be expounded in one sense and executed in the same manner,–whereas, adjudications on the same points and questions, in thirteen States… will not always accord or be consistent’. The Framers, thus clearly, intended the 1783 treaty to be enforceable by the federal government; however, the terms of the treaty included matters within the bounds of the states. The terms of the settlement with Britain encompassed questions of property rights for aliens; while granting the rights in question were within the power of the several states, no contemporary questioned that the federal government could not grant the rights under Congress’ enumerated powers but could enforce the treaty. Within the context of the Constitution’s ratification – and indeed in its very rationale – the power to regulate matters traditionally reserved to the state does lie within the powers of Congress in implementing or enforcing a treaty.

The judicial background supports a broad reading of Congressional power under the Treaty, Supremacy, and Necessary and Proper Clauses. In Holland, the Court explicitly rejected the argument that ‘what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do’. The Treaty Clause authorises the United States to enter treaties signed by the President and ratified by two-thirds of the Senate; the Supremacy clause provides that treaties shall bind and override state law. Thus, the powers reserved to the states will not prevent Congress from implementing a treaty that covers a matter within its enumerated powers. For example, Congress’ authority to ‘secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’ clearly enables Congress to implement the WIPO Copyright Treaty. Nor is the CWC questioned as it applies to the armed forces, as Congress has the authority ‘[t]o make Rules for the Government and Regulation of the land and naval Forces’. The question at issue is only one of where implementing a treaty requires Congress to tread on territory typically governed as by the states’ police power. The argument for limiting Congress’ power in such matters is essentially, as Justice Holmes phrased it in Holland, that implementation ‘is forbidden by some invisible radiation from the general terms of the Tenth Amendment’, 252 U.S. 434[4]. On the other hand, that ‘carrying into Execution’ a treaty is one of the ‘Powers vested by [the] Constitution in the Government of the United States’ and is thus a ‘necessary and proper’ exercise of Congressional power is simply a plain-text reading of the Necessary and Proper Clause[5].

The significance of the federalism question has expanded significantly since the Holland Court sat in 1920. In a globalised world, foreign policy increasingly encroaches into the domestic sphere. The subject-matter test the Court applied in Holland would not begin to encompass the scope of governance that now takes place through international cooperation. The most interesting question posed by Bond II however is what follows: if a structural limit does not exist on the powers a treaty can provide Congress, does a rights-based limit exist? The Court may begin to touch on the scope of the treaty power in the 21st Century in Bond II.

So will the American foreign policy toolbox be dramatically reduced? The Court has the option in Bond II of vacating the Third Circuit’s ruling on narrowly tailored grounds: if the Court finds that the CWC does not encompass poisoning outside the context of war, it can avoid the major constitutional question. If the Court chooses to address the scope of the treaty clause head-on, five justices are likely posed to issue a sweeping ruling. Justices Roberts, Scalia, Thomas, and Alito tend to adopt the narrowest possible construction of the Necessary and Proper clause. Justice Kennedy, often considered a ‘swing vote’, sees structural limitations on Congressional power as protective of individual rights; he seems unlikely to be receptive to an argument for nearly unbounded federal power through treaties. The Court may rule by June.


[1] The matter that the Court agreed to review is actually its second time addressing Bond. It previously reversed the Third Circuit’s dismissal of her appeal for wont of standing. This article refers to the pending case as Bond II and the previous case as Bond I.

[2] The Holland Court noted, in dicta, that if a treaty ‘contravene[d] any prohibitory words to be found in the Constitution’ its implementation may remain impermissible, 252 U.S. 416, 433.

[3] See, e.g., Medellín v. Texas, 552 U.S. 491 (2008).

[4] Beyond the federal power over treaties is an often-overlooked clause of Article I, providing that ‘No State shall enter into any Treaty, Alliance, or Confederation’. The Tenth Amendment provides ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people’. As the power to enter a treaty is explicitly denied to the states, the federalist argument for a treaty power limited by structure requires the adoption of a rule of construction that assumes the Framers intended to make the regulation of some forms of international relations totally ultra vires to all forms of government within the United States.

[5] A second line of argument holds that the Treaty Clause allows the federal government to enforce self-executing treaties, but not to implement non-self-executing treaties. Holland flatly contracts the argument, as does the Necessary and Proper Clause. Even assuming arguendo that the Necessary and Proper Clause does not so empower Congress, the argument that the executive, in conjunction with on house of the legislature, can take an action but that the executive and both houses cannot so act subsequent to the adoption of a treaty boggles any reasonable form of Constitutional interpretation. If the President and Senate can take an action, a fortiori the President and House and Senate can as well.