The facts underlying the U.S. Supreme Court’s June 2 ruling in Bond v. United States are so ridiculous that, unfortunately, every news outlet reporting on the case spent more time describing them than discussing the complex legal issues raised by the opinion. The facts, in two sentences, are: After learning that her husband impregnated her best friend, Bond put chemicals on surfaces that her friend was likely to touch. The pregnant friend avoided most of the chemicals, and suffered only a minor burn to her thumb (remedied by running water). Hidden behind these pathetic facts, however, are critical legal issues involving international and constitutional law and federalism.
Miffed that the local prosecutor did not take the case seriously, a federal prosecutor in Pennsylvania successfully brought charges against Bond for violating the 1998 Chemical Weapons Convention Implementation Act. Congress enacted this statute to enforce domestically the 1997 treaty, the Convention on the Prohibition of the Development, Stockpiling, and Use of Chemical Weapons and on their Destruction. Such legislation was necessary because there is a presumption that treaties cannot be enforced domestically unless the treaty specifically states so, or Congress enacts implementing legislation.
Simply by charging Bond with violating the Chemical Weapons Convention, the prosecutor took the case out of the local realm. By the time the case got to the Supreme Court, the focus was no longer on Bond’s vengeful acts, but rather, on whether Congress had the constitutional authority to enact legislation that implements international treaties domestically. Did the prosecutor really intend for this to happen?
The Supreme Court unanimously held that allowing Bond’s conviction to stand “would transform the statute from one whose core concerns are acts of war, assassination and terrorism into a massive federal antipoisoning regime that reaches the simplest of assaults.” But, Justices Scalia, Thomas and Alito grabbed the opportunity to use this ridiculous case to call into question Congressional power to implement treaties domestically. Their opinions challenge the 1920 case Missouri v. Holland, which courts have long interpreted as giving Congress the power to enact legislation to implement treaties domestically, even when the implementing legislation intrudes on what would otherwise be within a state’s exclusive province.
Justice Scalia sounds the alarms that international treaty provisions might cause courts to override Supreme Court cases limiting Congressional power. (Tellingly, the only two examples he could muster to demonstrate his point were the Supreme Court’s very divided decisions striking down parts of the Violence Against Women Act, and federal gun control laws that limited firearm use near schools.) Justice Thomas’ opinion goes even further. He calls into question Congress’s authority to enter into any treaties that do not concern foreign relations. Treaties that would fall into that category that readily come to mind are international human rights treaties.
When reading the opinion, I wondered why the prosecutor charged Bond with violating the Chemical Weapons Convention. If the prosecutor had taken a basic course in international law, he certainly would have thought twice before invoking that treaty. Any treaty, by definition, has international implications. As Chief Justice Roberts Jr. pointed out, a plethora of state and federal criminal statutes adequately address Bond’s Norristown, Pa., legal transgressions.
We are in an era where law schools are re-thinking their curricula in response to criticism by judges and employers that newly-minted lawyers are ill-prepared to practice law. Law schools are adding “experiential” components to doctrinal classes and expanding their clinical programs. On the heels of Bond v. U.S., I propose another necessary curricular change. Law schools and state bars should require all law students and practicing lawyers to take at least one comprehensive course in international law.
Today, everyone comes into contact with international issues, whether they realize it or not. (For example, the local deli may sell fruit from Ecuador and may employ undocumented or documented immigrants.) Thousands of refugees flee war-ravaged failed states in search of safe homes that, sometimes, are halfway around the globe. As a result, the U.S. and countries around the world are struggling to define their immigration policies. And, on and on it goes.
That is why lawyers need to be able to recognize the full scope of international law issues when they encounter them. Lawyers need to know the implications of invoking international law, including treaties, and should know when they are in danger of making bad law that they did not intend. Many valuable resources would have been saved if the federal prosecutor who charged Bond realized that invoking the Chemical Weapons Convention Implementation Act for a petty crime was pure folly. Because he failed to engage in basic issue-spotting, we now have a U.S. Supreme Court decision where three concurring justices seriously call into question case law that has been settled for nearly 100 years that defines Congress’s treaty-making powers.•
Venetis is a Clinical Professor of Law and Judge Dickinson R. Debevoise Scholar at Rutgers School of Law-Newark. She is the director of the International Human Rights Clinic, and co-director of the Constitutional Rights Clinic at the law school.