Constitutional Law Commons^™

An Intersubjective Treaty Power, Duncan B. Hollis

Notre Dame Law Review

This Article explores whether the Constitution limits the making and implementation of U.S. treaties to subjects of “international” intercourse or concern. It does so in two steps. First, I undertake the existential inquiry, asking if the Constitution requires a nexus between treaties and “international” subject matters. I argue that Justices Alito, Scalia, and Thomas are correct—and the Restatement (Third) is wrong—on the question of whether the Constitution imposes an affirmative subject matter limitation on the treaty power. Various modalities of constitutional interpretation—original meaning, historical practice, doctrine, structure, and prudence—offer evidence in support of some version of an “international concern” test. …

The Boundless Treaty Power Within A Bounded Constitution, Saikrishna Bangalore Prakash

Notre Dame Law Review

I count myself among those who suppose that the Constitution contains no subject matter limits on the treaty power. More precisely, I believe that the original Constitution granted the President the power to make international agreements, with no particular constraints on the subjects they might touch. I reach this conclusion with a great deal of reluctance not because the case for this proposition is weak but because, as a matter of policy, I favor subject matter limits on the treaty power as a means of ensuring exclusive state authority over certain matters. Nonetheless, I have become convinced that the Constitution …

Bond'S Breaches, Edward T. Swaine

Notre Dame Law Review

Bond v. United States illustrates a new maxim for today’s Supreme Court: hard cases make no law at all. To be sure, Bond’s bottom line was not particularly difficult. But once the Supreme Court ultimately did take the case, it became hard to decide—at least in terms of the rationale. Although the Justices all favored reversal and dismissal of the indictment, they wound up providing little clarity on the larger questions the case raised.

If, as the more time-honored homily goes, hard cases otherwise make bad law, making little bad law was hardly the worst outcome. Nevertheless, what the …

Congress's Limited Power To Enforce Treaties, Michael D. Ramsey

Notre Dame Law Review

This Article focuses on Justice Scalia’s concurrence in the judgment in Bond v. United States. It makes three main points. First, Scalia’s claim that Congress lacks a general power to enforce treaties is unpersuasive as a matter of the Constitution’s original meaning. Further, Scalia’s claim rests strongly on the structural point that giving Congress treaty enforcement power would expand the federal government’s power without limit. Second, Scalia’s structural concerns about effectively unlimited congressional power are nonetheless partly justified to the extent that courts substantially defer to Congress’s claims about what action is necessary and proper to enforce a treaty. …

Bond V. United States: Choosing The Lesser Of Two Evils, David Sloss

Notre Dame Law Review

This essay makes two main points. First, the majority’s interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding of the design of the underlying treaty. Second, Justice Scalia’s construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia’s view would seriously harm the federal government’s ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia’s constitutional error would be far more damaging than the majority’s statutory error, the majority’s statutory …

Bond, The Treaty Power, And The Overlooked Value Of Non-Self-Executing Treaties, Julian Ku, John Yoo

Notre Dame Law Review

This Article proceeds as follows. First, it discusses the Bond case and how the treaty at issue in Bond illustrates the practical importance of non-self-executing treaties in U.S. practice. It elaborates on this point in Part II by arguing that the CWC is the classic example of an important international treaty that could not have been properly implemented without separate legislation. Next, it offers a discussion of the academic criticism of non-self-execution as tending to undermine the United States’ ability to comply with international obligations. It then responds to this criticism by exploring the ways in which non-self-executing treaties like …

Bond V. United States And Information-Forcing Defaults: The Work That Presumptions Do, Paul B. Stephan

Notre Dame Law Review

This Article first places Bond in the context of the Supreme Court’s growing reliance on interpretive presumptions to limit the effect of legislation. While some of the presumptions go back to the early days of the Republic, the current Court has expanded the roster of these devices and strengthened their effect. A review of the treatment of information-forcing defaults in contracts scholarship follows. Contract theory, or more precisely the strand of contract theory that draws on economics, seeks to identify socially optimal rules for contract formation, interpretation, and enforcement. To clarify the specific role of these rules, this Article compares …

Bond And The Vienna Rules, Roger P. Alford

Notre Dame Law Review

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.

Bond V. United States, Dean M. Nickles

Notre Dame Law Review Reflection

Although the majority’s outcome was correct, the application of the clear statement rule in this situation seems incorrect. The majority misconstrues the statute not to reach Mrs. Bond’s conduct when it should have done so. The concurrences properly assert that despite the conduct here falling within the clear definition of the statute, the Court should have reversed the conviction on constitutional grounds. As a result of this decision, Congress should now plan to make clarifying statements about the scope of the statute in order to avoid the clear statement problem identified here.

Separately, although only dicta, Justice Scalia’s assertion that …

Bond And The Vienna Rules, Roger P. Alford

Journal Articles

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.