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Bond v. United States (U.S. Sup. Ct.)

On August 16, 2013, Constitutional Accountability Center filed an amicus curiae brief in the Supreme Court in support of the government in Bond v. United States, a case with important implications for the scope of the Necessary and Proper Clause.  In this case, Petitioner Carol Anne Bond was convicted of violating the Chemical Weapons Convention Implementation Act of 1998, a statute enacted by Congress to implement the obligations of the United States under the Chemical Weapons Convention, an international treaty.  Bond appealed her conviction, arguing that the statute does not apply to her conduct, and that, if it does, it was unconstitutionally applied in her case.  The Court of Appeals for the Third Circuit affirmed Bond’s conviction, and the Supreme Court granted review. 

Cato Institute (along with other conservative organizations) filed an amicus brief in support of Bond, arguing that the Court should overrule long-standing precedent and hold that the Necessary and Proper Clause does not authorize Congress to enact appropriate laws to implement validly enacted treaties.  If adopted, such a narrow interpretation of the Necessary and Proper Clause would have significantly limited Congress’s ability to act pursuant to the Necessary and Proper Clause in other contexts as well.

Our brief demonstrated that the Constitution’s text, history, and structure all support Congress’s authority to enact appropriate legislation to implement validly enacted treaties.  As explained in our brief, the authority conferred by the Necessary and Proper Clause is a broad one, and the Framers did not limit it to only executing laws enacted by Congress.  Rather, the Framers intentionally extended this authority to all other powers vested in “any Department or Officer,” which includes the President’s power, with the advice and consent of two-thirds of the Senate, to make treaties.  This understanding of the text makes sense in light of the Constitution’s history.  Concern about our Nation’s international reputation and the failures of the States to comply with treaties ratified under the Articles of Confederation led the Framers to draft a new Constitution which, unlike the Articles of Confederation, granted the federal government not only the authority to negotiate with foreign nations, but also to fulfill any obligations it might make to foreign nations.  It would significantly undermine the Framers’ intent if the federal government lacked the power to fulfill whatever treaty obligations the President and Senate might choose to create.  Moreover, congressional debates after the Constitution’s ratification suggest that there was considerable agreement that the Necessary and Proper Clause, coupled with the Treaty Power Clause, conferred on Congress the power to enact appropriate legislation to implement valid treaties.

The Supreme Court heard oral argument in Bond on November 5, 2013.

On June 2, 2014, the Court issued a narrow ruling, holding that the Chemical Weapons Implementation Act does not apply to Bond’s conduct.  Writing for the Court and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, Chief Justice Roberts described Bond’s conduct as an “unremarkable local offense” not covered by the Act.  The Court thus declined to limit the constitutional power that gives the federal government authority to enact appropriate legislation to implement validly enacted treaties, as the Cato Institute and other conservative organizations had urged.  Although Justices Scalia, Thomas and Alito concurred in the judgment, each wrote a concurring opinion stating that he would have reversed Bond’s conviction on constitutional grounds.