JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that arguments put forward in the case of Bond v. United States, claiming that the federal law implementing the Chemical Weapons Convention is unconstitutional, are based on a fundamentally flawed understanding of the US Constitution…

The US Supreme Court has accepted the case of Bond v. United States, a case involving a criminal conviction under a federal statute that implemented a multilateral treaty known as the Chemical Weapons Convention. The convention implicates serious national security interests with respect to international criminal law and possible terroristic use of certain weapons here and abroad, and the legislation is clearly rationally related to national security and, like any multilateral treaty, foreign affairs. Relying primarily on Missouri v. Holland, the US Court of Appeals for the Third Circuit affirmed the conviction despite defense claims that the crime was localized, was otherwise normally prosecutable by a state, and conviction under the statute was somehow inconsistent with the Tenth Amendment, a vague implied “federalism” and an allegedly implied “subject matter” limitation that appear nowhere in the US Constitution.

In sharp contrast to defendant’s claims, a prior study of the treaty power vis a vis the power or sovereignty of the states that addressed more than ninety cases (thirty-two of which are US Supreme Court cases) reveals that there is a lack of any inhibiting state authority. The thorough study of cases also reveals that there is no imaginary “subject matter” limitation and identifies eighteen general categories or subject areas where the treaty power prevailed over matters that had otherwise been the prerogative of the states, including state criminal law and state criminal procedures. What follows is a slightly revised text from that study.

Under the Tenth Amendment to the Constitution, any remaining state powers or aspects of state sovereignty are expressly limited to: (1) those “powers not delegated to the United States by the Constitution,” and (2) those powers that are not “prohibited by it to the States.” The treaty power was expressly delegated under Article II, Section 2 (i.e., the president “shall have Power, by and with the Advice and Consent of the Senate to make Treaties”) and Article III, Section 2 (i.e., “[t]he judicial Power shall extend to all Cases … arising under Treaties”) of the Constitution. The treaty power was also expressly prohibited to the states in Article I, Section 10 (i.e., “[n]o State shall enter into any Treaty”). For two trenchant reasons, therefore, the text of the Tenth Amendment precludes the possibility that an exercise of the treaty power could be inconsistent with the Tenth Amendment or could be limited by or impermissibly encroach upon any allegedly remaining state sovereignty. Clearly, the text of the Tenth Amendment places express and structural limits on state authority and precludes any inconsistent implied “federalism” limits of federal authority.

Additionally, the text of the Constitution clearly and unavoidably mandates that “all” treaties are supreme law of the land — binding the states and the state judiciary. Expressly, therefore, there are no limitations of any kind regarding the nature, scope or subject matter of treaties that are supreme law vis a vis state power or sovereignty. The text of the Constitution expressly requires that “all” treaties have that reach. As Alexander Hamilton famously wrote in Federalist No. 23, the treaty power “ought to exist without limitation … [with] no constitutional shackles.” And as Representative William Vans Murray remarked in 1796, because of the “explicitness of the instrument itself” with respect to the supremacy of treaties, “nothing … is left for … sophistry.”

As Supreme Court cases have long recognized, there is no competing or inhibiting power or sovereignty of the states. Indeed, with respect to treaty law, the Supreme Court and other federal courts have stated that “the Tenth Amendment is no barrier” and “whatever is within … [the] scope [of the treaty power] is not reserved to the states [and] the Tenth Amendment is not material.” As one federal court recognized in 1880:

There can be no mistaking the significance or effect of these plain, concise, emphatic provisions. The states have surrendered the treaty-making power to the general government, and vested it in the president and senate; and, when duly exercised … the treaty resulting is the supreme law of the land, to which not only state laws but state constitutions are in express terms subordinated.

No nonconforming, theoretic construct or revisionist, professorial preference can rightly avoid the textual strictures and structure of the Constitution in this regard. The express textual strictures of the Tenth Amendment and the Supremacy Clause and related structural bonds with Articles I, II and III are reason enough to preempt invitations to engage in judicial reconstruction of the Constitution in the name of an allegedly implied federalism or an imaginary subject matter limitation that was not chosen.

As the Supreme Court has rightly affirmed, “treaties of course ‘are as binding within the territorial limits of the States as they are elsewhere throughout the dominion of the United States'” and treaties can reach “matters which in … [their] silence … the State may regulate.” With respect to matters that “usually fall within the control of the State,” “a treaty may override its power.” Indeed, a treaty is “obligatory” domestically and “must necessarily control all acts issuing from the inferior authority which might contravene it” (i.e., the state, including unavoidably the state judiciary). As one federal court recognized:

[T]he treaty furnishes the law, and with that treaty no state or municipal corporation thereof can interfere. Admit the wedge of state interference ever so little, and there is nothing to prevent its being driven home and destroying the treaty-making power altogether.

As noted in the study, generations of federal and state judges have consistently recognized the overriding domestic reach of treaty-based law and law radiating from other international agreements to matters that otherwise might have been the prerogative of the state, such as: state court criminal jurisdiction and criminal law, state court criminal proceedings, state statutes of limitation, state rules of evidence, other state procedural laws regarding access to courts and remedies, state personal injury laws and workmen’s compensation, state family law, title to and use of land and leases, control of water, title to personalty located in the state, control of debts, police power control of local businesses and employment, state power of exclusion and detention of persons and the alleged necessity to seize persons in order to protect state security, contract bidding, state registration of persons for employment and vehicle registration and driver’s licenses, state taxes and inheritance. Additionally, treaties can enhance the power of Congress under Article I, Section 8, clauses 3, 10, and 18 of the Constitution to reach matters that states might otherwise regulate. With respect to related congressional powers, the study cited US v. Lara, Missouri v. Holland, US v. Haun and, with respect to a similar congressional power to implement customary international law, cited US v. Arjona.

To summarize, Supreme Court opinions have long recognized that there are no competing or inhibiting sovereign powers of the states with respect to the reach of treaty law and whatever had previously been a matter of state concern or within its sphere can be overridden by the reach of treaties. Treaties can necessarily “intrude” on traditional areas of state concern and can do so with even more authority when coupled with rationally related legislation. The text and structure of the Constitution require this result.

Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston and author of the above-mentioned study.

Suggested citation: Jordan Paust, Bond v. United States and Treaty Bonds, JURIST – Forum, Feb. 2, 2013, http://jurist.org/forum/2013/02/jordan-paust-bond-v-us.php