Constitutionality of U.S. Statute Enacting the Chemical Weapons Convention 2 in the United States

See:

• Constitutionality of U.S. Statute Enacting the Chemical Weapons Convention
• Constitutionality of U.S. Statute Enacting the Chemical Weapons Convention 3

The Chemical Weapons Statute clearly satisfies this standard. As the court observed in Lue, an act of Congress “plainly bears a rational relationship to [a] Convention[] [where] it tracks the language of the Convention in all material respects.” 134 F.3d at 84. As the district court noted in this case, see App. 168, the provisions of the Chemical Weapons Statute virtually mirror the provisions of the Chemical Weapons Convention that the statute implements. Thus, 18 U.S.C. § 229(a)(1), which makes it unlawful for any person “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon,” adopts almost verbatim the prohibitions contained in Articles I and VII of the Convention. Likewise, the definitions of “chemical weapon” and “toxic chemical” contained in the Chemical Weapons Statute are virtually identical to the definitions of those terms in the Convention. Compare Chemical Weapons Convention, art. II, §§ 1, 2 with 18 U.S.C. § 229F. Accordingly, the Chemical Weapons Statute plainly bears a “rational relationship” to the Convention it was enacted to implement. See also Lue, 134 F.3d at 84 (“[T]he ‘plainly adapted’ standard requires that the effectuating legislation bear a rational relationship to a permissible constitutional end.”). No court has ever suggested otherwise.

Finally, to the extent Bond has raised more general federalism concerns with Section 229, they are not only without legal foundation but also fundamentally misplaced. In this case, neither the Convention nor its implementing legislation restrikes the balance between the federal government and the states. Section 229 neither preempts state law nor precludes state prosecution of the same activity. Rather, it establishes a parallel basis for federal prosecution. Section 229 also does not require or compel state officials to take any particular action to address the behavior at issue here. State officials remain just as free to act, or not to act, as they were prior to Section 229’s enactment. Accordingly, Section 229 advances compelling national and international interests, and does so in a manner that does not intrude on state prerogatives.

In short, the President’s decision, by and with the advice and consent of the Senate, to have the United States become a party to the Chemical Weapons Convention was an appropriate exercise of the Treaty Power. The overall goal of that Convention—eliminating the production and use of chemical weapons by both states and non-state actors—is a national interest of the highest order. Congress fulfilled express obligations under the Convention by enacting implementing legislation, including 18 U.S.C. § 229(a)(1), that was both necessary and proper to implement the relevant provisions of the Convention. The district court correctly concluded that Congress acted within its constitutional authority.

On October 14, 2011, the United States filed its supplemental reply brief in the Bond case, repeating its arguments that the Chemical Weapons Statute is a valid exercise of the Commerce Clause Power and the Treaty Power under the U.S. Constitution. The United States again explained that the Court need not address the Treaty Power basis for the statute because Congress’s Commerce Clause authority to enact the statute is clear. The section of the brief discussing the Treaty Power is excerpted below with most footnotes and citations to the record omitted. The full text of the reply brief is available at www.state.gov/s/l/c8183.htm.

In the event this Court finds it appropriate to address Bond’s Treaty Power arguments, they also fail for the reasons set forth in the government’s earlier brief. Bond claims that Congress exceeded the permissible bounds of the Necessary and Proper Clause when it enacted Section 229, and she argues that this exercise of Congress’s Necessary and Proper authority offends the Tenth Amendment to the Constitution and any structural limits it embodies. The arguments that Bond raises have been rejected by the Supreme Court (as well as other courts of appeals), and this Court is therefore bound to reject her arguments as well.

As explained in the government’s earlier brief, when Congress enacts legislation pursuant to the Necessary and Proper Clause to implement a valid treaty, all that is required is that the implementing legislation bear a rational relationship to the treaty. See United States v. Lue, 134 F.3d 79, 84 (2d Cir. 1998) (“[T]he ‘plainly adapted’ standard requires that the effectuating legislation bear a rational relationship to a permissible constitutional end.”). Indeed, “the relevant inquiry” in examining the validity of legislation under the Necessary and Proper Clause, as the Supreme Court recently reiterated in United States v. Comstock, “is simply whether the means chosen are reasonably adapted to the attainment of a legitimate end under the [subject] power.” 130 S. Ct. 1949, 1957 (2010) (internal quotation marks and citation omitted).

The word “necessary” of course does not mean “absolutely necessary.” United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010), quoting Comstock, 130 S. Ct. at 1956; see also Holland, 252 U.S. at 432 (“If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government”). Thus, Bond’s claim that the statute is not necessary and proper because it “goes beyond what is necessary to implement the treaty,” is plainly inconsistent with the Supreme Court’s long-standing articulation of the appropriate test.

When Section 229 is evaluated against the necessary and proper standard that courts actually apply, Bond’s assertion that the Chemical Weapons Statute contains language different in some minor respects from the corresponding language of the Convention becomes entirely irrelevant. The slight differences identified by Bond are overstated and, in any event, entirely academic in the context of this case. The offense of possession is plainly encompassed within the terms “acquire” and “retain,” both of which are expressly covered by the Convention. See Chemical Weapons Convention art. I, § 1(a); see also S. Exec. Rep. 104-33, at 2 (“[t]he goals of the [Convention] are to eliminate the possession of chemical weapons, to reverse chemical weapons proliferation, and to preclude any future use of these weapons”) (emphasis added). Further, Bond entered a plea of guilty to the full range of offenses punishable under the statute, including transferring and using a chemical weapon, terms that are found in both the Convention and the implementing statute. It is therefore inconsequential whether, as to Bond, the additional statutory offense of possession was also within the ambit of the Convention.