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Home > Journals > Michigan Law Review > MLR FI > Vol. 112

 

Abstract

One of the unusual features of cases about the constitutionality of federal statutes is that they are nearly always foreseeable. Even before the bill’s introduction in Congress, lawmakers are often aware that they are inviting a federal lawsuit. Anticipating a legal challenge, legislators and their staffs attempt to predict the courts’ views of the statute and adapt the bill accordingly. Generally speaking, the bigger the bill’s potential constitutional impact, the more foreseeable the resulting case. By this logic, jurists should have seen the constitutional issues in Bond v. United States from a mile away. In reality, they were foreseen by virtually no one. Bond addresses the constitutionality of a high-profile act of Congress, the Chemical Weapons Convention Implementation Act of 1998 (hereinafter the “Act” or the “Implementation Act”). The Act domesticizes the Chemical Weapons Convention (“CWC”), a global treaty concluded in 1993, which the United States joined four years later. The CWC is expressly aimed at stopping the development, stockpiling, and deployment of chemical weapons of mass destruction. The Act’s application in Bond tests the limits of Congress’s power to implement treaties that encroach on traditional state prerogatives. The specific question before the Court is whether the Necessary and Proper Clause of the U.S. Constitution and Missouri v. Holland allow Congress to penalize “local” conduct not within any of its enumerated powers—and in fact quintessentially within the states’ police powers—when it is implementing a valid treaty. Both parties and numerous amici now seem to believe that the case could transform key parts of federalism doctrine and/or the United States’ ability to make treaty commitments. Yet despite the plethora of legal expertise in Congress and the executive branch, no one seemed aware of these issues until Bond’s attorneys raised them before a federal district court in 2007. Given Bond’s grand, disarmament-treaty origins, that oversight will probably trouble anyone interested in the growing role of international law in the U.S. federal legal system. Much has been written about how Bond should be decided and how its outcome could shape constitutional law and U.S. foreign relations. This Essay instead looks backward, exploring the strange roots of Bond and what those origins say about the process by which the United States converts treaties into federal law. The Essay suggests that the reason that Bond—and its implications for treaties and federalism— took so many by surprise lies in the incentives inherent in the arcane art of translating international law into domestic law. In that sense, Bond is a cautionary tale for future treaty-implementation efforts.

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