Constitutionality of U.S. Statute Enacting the Chemical Weapons Convention 3 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 2
Bond’s assertion that the Chemical Weapons Statute exceeds what is necessary and proper to implement the Convention because Congress could have left implementation of Article VII of the Convention to the states is also without merit. There is no doubt that the Necessary and Proper Clause must afford Congress sufficient discretion to decide how best to execute the powers set forth in the Constitution. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (explaining that the “constitution must allow to the national legislature that discretion[] with respect to the means by which the powers it confers are to be carried into execution”); Lue, 134 F.3d at 84 (emphasizing “the need to preserve a realm of flexibility in which Congress can carry out its delegated responsibilities”). See also Belfast, 611 F.3d at 805 (finding that Congress’s power under the Necessary and Proper Clause “is nowhere broader and more important than in the realm of foreign relations”). It was well within Congress’s discretion under the Necessary and Proper Clause to conclude that a rational approach to ensuring the United States’s compliance with the Convention was to create a uniform federal criminal offense, rather than to do nothing and to hope that the states would enact 50 parallel implementing laws. Indeed, leaving implementation of treaty obligations to the states could easily have resulted in uneven efforts at compliance and further served to confuse our treaty partners as to whether the United States was in full compliance with its Convention obligations.
In addition, contrary to Bond’s assertions, the non-self-executing character of Article VII actually supports Congress’s decision to enact federal legislation. Because the relevant provisions of the Convention are not directly judicially enforceable, the absence of federal legislation to implement the Convention’s requirements could have left the federal government without adequate means to ensure U.S. compliance with the Convention, a validly enacted treaty that constitutes the supreme law of the land. Thus, implementing the Convention by federal legislation was well within Congress’s discretion.
Since it is clear that this Court cannot overturn Missouri v. Holland, 252 U.S. 416 (1920), Bond advances a novel reading of that case that is not supported by either the opinion itself or by any subsequent cases addressing Holland. Bond argues that in determining whether a statute can be upheld as a valid implementation of the Treaty Power, the various federal and state interests must be balanced. The Holland decision does not support such a reading, and Bond does not cite a single case that either finds a balancing test hidden within Holland or applies a balancing test in resolving a Treaty Power issue.
Ultimately, it is Holland itself that disproves Bond’s balancing theory. The Holland opinion does note that the migratory birds covered by the statute had only a temporary presence within a state such as Missouri, 252 U.S. at 434, but the decision does not rest on these facts.
Indeed, the Court’s opinion immediately thereafter discusses instances in which treaties trenching upon more established state interests (such as statutes of limitations, confiscation of debts, and escheat of land within a state) were upheld. See id. at 434-35. Summarizing this point, the Court concludes: “No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.” Id. at 434. The Holland Court also notes that the “national interest [was] of very nearly the first magnitude” in that case and that reliance on the states was not sufficient to protect that interest. Id. at 435. But again the decision does not rest on this point, as the Court found that “were it otherwise, the question is whether the United States is forbidden to act.” Id. The Court’s opinion makes clear that it is not. See id. at 433 (“[I]t is not lightly to be assumed that, in matters requiring national action, a power which must belong to and somewhere reside in every civilized government is not to be found.”) (internal quotation marks and citation omitted).
With respect to the Tenth Amendment, Holland flatly contradicts Bond’s assertion that the Court upheld the Migratory Bird Treaty Act on the basis of a purported balancing test. The Court made this point emphatically: “[I]t is not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, § 2, the power to make treaties is delegated expressly” to the federal government. 252 U.S. at 432 (emphasis added).
Rather than adopting a balancing test to address Holland’s Tenth Amendment claim, the Court instead looked to whether the treaty “contravene[d] any prohibitory words [of] the Constitution.” Id. at 433. Courts before and after Holland have followed the same approach, which is grounded in a precise reading of the Constitution’s text and structure. See Geofroy v. Riggs, 133 U.S. 258, 267 (1890) (explaining that the Treaty Power “is in terms unlimited except by those restraints which are found in [the Constitution] against the action of the government or of its departments”); Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion) (applying this approach to find that Congress could not give effect to the Status of Forces Agreement with Japan in a manner that deprived U.S. citizens of the right to an indictment and trial by jury).
Even if it were not inconsistent with Holland, Bond’s balancing approach is fundamentally flawed on its own terms, because Bond improperly weighs the state’s generalized sovereignty interests against what she characterizes as the limited federal interest in prosecuting one defendant in one case. As the government explained in detail in its earlier brief, however, the strong federal interest in prohibiting the use of chemical weapons by individuals is of the highest order and is closely tied not only to the United States’s treaty commitments to eradicate the production and use of chemical weapons, but also to the promotion of foreign and interstate trade in chemicals used for peaceful purposes. The state’s interest in deciding how to prosecute and punish local assaults is not directly implicated, as the state’s prosecutorial discretion is protected by the principle of dual sovereignty.
In the end, Bond’s Tenth Amendment arguments cannot be squared with Holland or with later cases interpreting and reaffirming Holland. Congress, in enacting the Chemical Weapons Statute, acted well within its power and discretion to craft legislation necessary and proper to implement a valid treaty eliminating the production and use of chemical weapons by both states and individuals. Accordingly, 18 U.S.C. § 229 is a valid exercise of Congress’s enumerated powers and does not violate the Tenth Amendment.