Justice Scalia Tries To Blow Up America’s Ability To Conduct Diplomacy


The Supreme Court’s decision in Bond v. United States arises out of a set of facts that seem lifted from a soap opera. Yet, if the Court’s two most conservative members had their way, it would have also cut off America’s ability to conduct international diplomacy at its knees. Justice Antonin Scalia, in an opinion joined by Justice Clarence Thomas, would strictly limit America’s ability to comply with its own treaty obligations — calling into question whether foreign nations can trust the United States to keep the promises it makes on an international stage.

Much of the media coverage of Bond focused on its sensational facts — a microbiologist named Carol Anne Bond discovered that her best friend was pregnant with her husband’s child, so she sought revenge by stealing a toxic chemical from her employer and smearing it on her untrustworthy friend’s car, home and mailbox. Unfortunately for Ms. Bond, these actions lead to her being prosecuted under a federal law implementing the United States’ obligations under an international treaty banning chemical weapons. Fortunately for her, however, they also made her the perfect litigant in a test case attacking America’s ability to live up to these treaty obligations in the first place. She soon found herself represented by Paul Clement, the de facto Solicitor General of the Republican Party.

As a general rule, the federal government may not criminalize violent crimes such as murder or assault. The Constitution restricts the Congress’ authority to a laundry list of powers such as the power to regulate interstate commerce, to tax and spend money or to set uniform rules for naturalization. Since the power to punish crimes such as assault are not on this list, those matters are typically reserved for the state.

Yet, the fact that Congress cannot ordinarily criminalize something like Bond’s attempt to poison her husband’s lover does not mean that they can never do so. The Constitution permits the president to “make treaties, provided two thirds of the Senators present concur,” and it also permits Congress to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” For this reason, the Supreme Court has long recognized that Congress may also make laws ensuring that treaties are fully implemented. As the Court explained in 1920, when the United States enters into a valid treaty, “there can be no dispute about the validity of the statute [implementing the treaty] . . . as a necessary and proper means to execute the powers of the Government.”

In Bond, a majority of the Court, including the Court’s four Democrats, joined an opinion by Chief Justice John Roberts that implicitly limits this power to enact laws implementing treaties. Though Roberts does not question that the United States can ban chemical weapons or their use as weapons of war, his opinion warns that this particular prosecution stretches too far. If the law implementing the chemical weapons treaty could be applied to Bond’s case, Roberts writes, “it would mark a dramatic departure from th[e] constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States.” So the federal government cannot use a law implementing a treaty to prosecute criminal matters that are normally local in nature.

It’s unclear whether Roberts will impose additional limits on Congress’ ability to implement treaties in the future.

Justice Scalia, by contrast, would read Congress’ independent power to enact laws implementing treaties out of the Constitution altogether. To accomplish this purpose, he engages in a bit of linguistic jiu-jitsu. Recall that the Constitution gives the president the power to “make treaties” and it gives Congress the ability to enact laws carrying this power to make treaties into execution. As Scalia reads the Constitution, however, the power to “make” a treaty is different from the power to “execute” a treaty. Congress “could have appropriated money for hiring treaty negotiators, empowered the Department of State to appoint those negotiators, formed a commission to study the benefits and risks of entering into the agreement, or paid for a bevy of spies to monitor the treaty-related deliberations of other potential signatories.” But once the treaty is made, according to Scalia, Congress’ power ceases.

The implication of this view is that the President of the United States can reach a bargain with a foreign nation, have that bargain ratified by a supermajority of the Senate, and then suddenly find itself unable to comply with its obligations under that bargain. Worse, because Scalia is calling for a massive shift away from nearly a century of established law, the United States is already a party to many existing treaties that could be undermined if Scalia’s views suddenly became law. Indeed, if a majority of the Court had joined Scalia’s opinion, America could lose its ability to comply with numerous international obligations overnight. This is a recipe for turning the United States of America into a pariah nation. When we give our word to a foreign power, that word should mean something.

To be fair, just how limited America’s ability to comply with its own treaty obligations would become under Scalia’s rule is a little unclear. For one thing, Scalia leaves open the possibility that what are known as “self-executing treaties” — that is, treaties that do not require additional legislation to be implemented, could still be enforced — though he labels this possibility “arguable.” Additionally, while Scalia rejects the idea that the Constitution specifically gives Congress the right to implement treaties, Congress could still enact laws that comport with our treaty obligations so long as it did so pursuant to a different congressional power — such as the power to regulate commerce. Justice Scalia has been, to say the least, inconsistent in laying out what he believes to be the limits on congressional action outside of its power to implement treaties. In 2005, for example, Scalia authored an opinion that left little doubt that the Affordable Care Act is constitutional. He then declined to follow this opinion when Obamacare reached his Court.

Yet, while Scalia has at times been uncertain about how he would fence in federal power, Justice Thomas — who joined Scalia’s opinion in Bond — has not been the least bit uncertain. Unlike Scalia, Thomas endorsed a long-ago-discarded interpretation of the Constitution that would lead to child labor laws, the minimum wage and the ban on whites-only lunch counters being struck down. Indeed, as Thomas reads the Constitution, much of the modern web of commercial and labor regulation that Congress began to weave during the New Deal would simply cease to exist. If this miserly view of congressional power were then layered onto Scalia’s vision for treaties, the United States would lose much of its ability to negotiate with foreign powers altogether.

Justice Scalia’s opinion, in other words, is an object lesson in why the justices should be reluctant to interfere with America’s foreign policy. Two justices, in service to an abstract vision of the Constitution that was rejected by the Supreme Court nearly one hundred years ago, would shred much of America’s ability to conduct diplomacy and destroy our credibility on the international stage.