OPINION OF THE COURT
JORDAN, Circuit Judge.
This case is before us on remand from the Supreme Court, which vacated our earlier judgment that Appellant Carol Anne Bond lacked standing to challenge, on Tenth Amendment grounds, her conviction under the penal provision of the Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. § 229 (the "Act"), which implements the 1993 Chemical Weapons Convention, 32 I.L.M. 800 (1993) (the "Convention"). The Supreme Court determined that Bond does have standing to advance that challenge, and returned the
In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that "there can be no dispute about the validity of [a] statute" that implements a valid treaty, 252 U.S. at 432, 40 S.Ct. 382, we will affirm Bond's conviction.
I. Factual Background and Procedural History
Bond's criminal acts are detailed in our prior opinion, United States v. Bond, 581 F.3d 128, 131-33 (3d Cir.2009) ("Bond I"), and in the Supreme Court's opinion, Bond v. United States, ___ U.S. ___, 131 S.Ct. 2355, 2360-61, 180 L.Ed.2d 269 (2011) ("Bond II"), so we provide only a brief recitation here. Suffice it to say that, while Bond was employed by the chemical manufacturer Rohm and Haas, she learned that her friend Myrlinda Haynes was pregnant and that Bond's own husband was the baby's father. Bond became intent on revenge. To that end, she set about acquiring highly toxic chemicals, stealing 10-chlorophenoxarsine from her employer and purchasing potassium dichromate over the Internet. She then applied those chemicals to Haynes's mailbox, car door handles, and house doorknob. Bond's poisonous activities were eventually discovered and she was indicted on two counts of acquiring, transferring, receiving, retaining, or possessing a chemical weapon, in violation of the Act. She was, in addition, charged with two counts of theft of mail matter, in violation of 18 U.S.C. § 1708.
B. Procedural History
Bond filed a motion to dismiss the counts that alleged violations of the Act. She argued that the Act was unconstitutional, both facially and as applied to her. More particularly, she said that the Act violated constitutional "fair notice" requirements, that it was inconsistent with the Convention it was meant to implement, and that it represented a breach of the Tenth Amendment's protection of state sovereignty. Emphasizing that last point, Bond contended that neither the Commerce Clause, nor the Necessary and Proper Clause in connection with the Treaty Power, could support the expansive wording of the statute, let alone her prosecution. (See App. at 59 (arguing that, "[g]iven the localized ... scope of the conduct alleged, ... application of 18 U.S.C. § 229 signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain").) The government's response has shifted over time,
We affirmed on appeal, concluding that Bond lacked standing to pursue her Tenth Amendment challenge and that the Act was neither unconstitutionally vague nor unconstitutionally overbroad.
In Missouri v. Holland, the Supreme Court declared that, if a treaty is valid, "there can be no dispute about the validity of the statute [implementing it] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government."
A. Constitutional Avoidance
Bond first argues, however, that we should avoid reaching the constitutional question by construing the Act not to apply to her conduct at all.
Her avoidance argument begins with the text of the Act itself, which provides, in pertinent part, that "it shall be unlawful for any person knowingly ... to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon." 18 U.S.C. § 229(a)(1). The term "chemical weapon" is defined broadly to include any "toxic chemical and its precursors," id. § 229F(1)(A), and "[t]he term `toxic chemical' means any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent
Specifically, Bond argues that, by looking to the "peaceful purpose" exception, we can employ a "common sense interpretation of § 229" that avoids "mak[ing] every malicious use of a household chemical"— including her own—a federal offense. (Appellant's Supp. Br. at 17.) All we need do is "interpret the statute ... to reach [only the kind of acts] that would violate the Convention if undertaken by a signatory state." (Id. at 14.) In other words, as Bond sees it, the modifier "peaceful" should be understood in contradistinction to "warlike" (3d Cir. Argument at 23), and, when so understood, the statute will not reach "conduct that no signatory state could possibly engage in—such as using chemicals in an effort to poison a romantic rival," as Bond did. (Appellant's Supp. Br. at 40.) That interpretation is tempting, in light of the challenges inherent in the Act's remarkably broad language,
That holding is in better keeping with the Act's use of the term "peaceful purpose" than the construction Bond would have us give it. The ordinary meaning of "peaceful" is "untroubled by conflict, agitation, or commotion," "of or relating to a state or time of peace," or "devoid of violence or force," Merriam-Webster's Collegiate Dictionary 852 (10th ed. 2002), and Bond's "deploy[ment of] highly toxic chemicals with the intent of harming Haynes," Bond I, 581 F.3d at 139, can hardly be characterized as "peaceful" under that word's commonly understood meaning, cf. Jones v. United States, 529 U.S. 848, 857-58, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000) (interpreting the federal arson statute not to reach "traditionally local criminal conduct" since the statute was "susceptible of two constructions" (citation and internal quotation marks omitted)). The term "peaceful," moreover, does not appear in isolation: the Act only excludes from its ambit "peaceful purpose[s] ... related to
Thus, while one may well question whether Congress envisioned the Act being applied in a case like this, the language itself does cover Bond's criminal conduct. And, given the clarity of the statute, we cannot avoid the constitutional question presented. See United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 1591, 176 L.Ed.2d 435 (2010) (stating that only "`ambiguous statutory language [should] be construed to avoid serious constitutional doubts'" (alteration in original) (citation omitted)); United States v. Locke, 471 U.S. 84, 96, 105 S.Ct. 1785, 85 L.Ed.2d 64 (1985) ("We cannot press statutory construction `to the point of disingenuous evasion' even to avoid a constitutional question." (quoting George Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 77 L.Ed. 1265 (1933))). It is not our prerogative to rewrite a statute, and we see no sound basis on which we can accept Bond's construction of the Act without usurping Congress's legislative role. Though we agree it would be better, if possible, to apply a limiting construction to the Act rather than consider Bond's argument that it is unconstitutional, see Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case"), the statute speaks with sufficient certainty that we feel compelled to consider the hard question presented in this appeal.
B. Constitutionality of the Act as Applied
Understanding whether application of the Act to Bond violates the structural limits of federalism begins with the Tenth Amendment, which Bond cites and which provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. That text, as the Supreme Court has observed, "confirms that the power of the Federal Government is subject to limits that may... reserve power to the States." New York v. United States, 505 U.S. 144, 157, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Thus, it encapsulates the principles of federalism upon which our nation was founded. See D.A. Jeremy Telman, A Truism That Isn't True? The Tenth Amendment and Executive War Power, 51 Cath. U.L.Rev. 135, 143-44 (2001) (describing the argument that "the Tenth Amendment has a declaratory function and provides a rule of constitutional interpretation rather than a rule of constitutional law").
As noted earlier, the Court made it clear that Congress may, under the Necessary and Proper Clause, legislate to implement a valid treaty, regardless of whether Congress would otherwise have the power to act or whether the legislation causes an intrusion into what would otherwise be within the state's traditional province. Id. at 432-33, 40 S.Ct. 382. While the Court did allow that there may be "qualifications to the treaty-making power," it also said, somewhat obscurely, that they had to be found "in a different way" than one might find limitations on other grants of power to the federal government. Id. at 433, 40 S.Ct. 382. After implying that Congress's powers are particularly sweeping when dealing with "matters requiring national action," the Court suggested one limitation on the Treaty Power: if the implementation of a treaty "contravene[s] any prohibitory words to be found in the Constitution," then it may be unconstitutional. Id. (citation omitted). Since the treaty in question did not do that, the only remaining question was "whether it [was] forbidden by some invisible radiation from the general terms of the Tenth Amendment." Id. at 433-34, 40 S.Ct. 382. The Court concluded that it was not. See id. (reasoning that, while "the great body of private relations usually fall within the control of the State, ... a treaty may override its power"). Finally, the Court assumed without
In sum, Holland teaches that, when there is a valid treaty, Congress has authority to enact implementing legislation under the Necessary and Proper Clause, even if it might otherwise lack the ability to legislate in the domain in question.
Bond vigorously disputes the implications of that conclusion. Specifically, she argues that legal trends since the Supreme Court's 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation. (See Appellant's Supp. Br. at 24 ("[I]n recent decades, the Supreme Court has reasserted the critical role of the Tenth Amendment in preserving the proper balance of authority between federal and state government to ensure that all levels of government represent and remain accountable to the People.").) Concluding otherwise, she asserts, would make "nothing... off-limits" in a world where, more and more, "international treaties govern a virtually unlimited range of subjects and intrud[e] deeply on internal concerns." (See id. at 20.) That latter point is not without merit. Juxtaposed against increasingly broad conceptions of the Treaty Power's scope, reading Holland to confer on Congress an unfettered ability to effectuate what would now be considered by some to be valid exercises of the Treaty Power runs a significant risk of disrupting the delicate balance between state and federal authority.
1. The Convention's Validity
The Constitution does not have within it any explicit subject matter limitation on the power granted in Article II, § 2. That section states simply that the President has the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." U.S. Const. art. II, § 2, cl. 2. Throughout much of American history, however, including when Holland was handed down, it was understood that the Treaty Power was impliedly limited to certain subject matters. See Bradley, supra, at 429 (arguing that "a subject matter limitation [on the Treaty Power] appears to have been assumed both during the Founding and at times during the nineteenth century," and suggesting it was likewise assumed by the Holland court); Golove, supra, at 1288 ("[V]irtually every authority, including the Supreme Court, has on countless occasions from the earliest days recognized general subject matter limitations on treaties.").
Contemporaneous records such as the Virginia Ratifying Convention show that the Founders generally accepted that the purpose of treaties was, as James Madison put it, to regulate "intercourse with foreign nations," and that the "exercise" of the Treaty Power was expected to be "consistent with" those "external" ends.
5 Annals of Congress 671 (1796) (emphasis added).
Early cases followed that reasoning and indicated that the Treaty Power is confined to matters traditionally understood to be of international concern. See, e.g., Ross v. McIntyre, 140 U.S. 453, 463, 11 S.Ct. 897, 35 L.Ed. 581 (1891) ("The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments."); De Geofroy v. Riggs, 133 U.S. 258, 266, 10 S.Ct. 295, 33 L.Ed. 642 (1890) ("That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear."); Holden v. Joy, 84 U.S. (17 Wall.) 211, 243, 21 L.Ed. 523 (1872) ("[I]nasmuch as the power is given, in general terms, without any description of the objects intended to be embraced within its scope, it must be assumed that the framers of the Constitution intended that it should extend to all those objects which in the intercourse of nations had usually been regarded as the proper subjects of negotiation and treaty....").
That is not to say, however, that any treaty encroaching on matters ordinarily left to the states was considered to be beyond the Treaty Power's permissible ambit. On the contrary, so long as the subject matter limitation was satisfied— which it undoubtedly was in cases involving "subjects [such as] peace, alliance, commerce, neutrality, and others of a similar nature," William Rawle, A View of the Constitution of the United States 65 (2d ed. 1829), or, as Jay put it, "war, peace, and commerce," The Federalist No. 64 (John Jay)—it was accepted that treaties could affect domestic issues. Many early decisions of the Supreme Court upheld treaties of that nature, including treaties regarding the ownership and transfer of property. See, e.g., Carneal v. Banks, 23 U.S. (10 Wheat.) 181, 189, 6 L.Ed. 297 (1825) (treaty between the United States and France that allowed citizens of either country to hold lands in the other). Still, it was widely accepted that the Treaty Power was inherently limited in the subject matter it could properly be used to address, see Santovincenzo v. Egan, 284 U.S. 30, 40, 52 S.Ct. 81, 76 L.Ed. 151 (1931) ("The treatymaking power is broad enough to cover all subjects that properly pertain to our foreign relations...."); Asakura v. City of Seattle, 265 U.S. 332, 341, 44 S.Ct. 515, 68 L.Ed. 1041 (1924) ("The treaty-making power of the United States ... does not extend `so far as to authorize what the Constitution forbids,'... [but] does extend to all proper subjects
Despite the long history of that view of the Treaty Power, the tide of opinion, at least in some quarters, has shifted decisively in the last half-century. Many influential voices now urge that there is no limitation on the Treaty Power, at least not in the way understood from the founding through to the middle of the Twentieth Century.
Whatever the Treaty Power's proper bounds may be, however, we are confident that the Convention we are dealing with here falls comfortably within them. The Convention, after all, regulates the proliferation and use of chemical weapons. One
2. Interpreting Holland
Because Holland clearly instructs that "there can be no dispute about the validity of [a] statute" that implements a valid treaty, 252 U.S. at 432, 40 S.Ct. 382, the constitutionality of Bond's prosecution would seem to turn on whether the Act goes beyond what is necessary and proper to carry the Convention into effect, or, in other words, whether the Act fails to "bear a rational relationship to" the Convention, Lue, 134 F.3d at 84. According to Bond, however, only a simplistic reading of Holland could lead one to think that the Supreme Court was saying that "Congress's power to implement treaties is subject to no limit other than affirmative restrictions on government power like the First Amendment." (Appellant's Supp. Reply Br. at 9-10.)
The problem with Bond's attack is that, with practically no qualifying language in Holland to turn to, we are bound to take at face value the Supreme Court's statement that "[i]f the treaty is valid there can be no dispute about the validity of the statute ... as a necessary and proper means to execute the powers of the Government." 252 U.S. at 432, 40 S.Ct. 382. A plurality of the Supreme Court itself apparently gave that passage the simplistic reading Bond denounces when it said, in Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), that:
Id. at 18, 77 S.Ct. 1222.
It is true that Justice Holmes spoke later in Holland in language that implies a balancing of the national interest against the interest claimed by the State, see Holland, 252 U.S. at 435, 40 S.Ct. 382 ("Here a national interest of very nearly the first magnitude is involved."), but that was in the context of assessing the validity of the Migratory Bird Treaty itself, not the implementing statute. That the latter was constitutional in light of the validity of the former seemed to the Supreme Court to require no further comment at all.
Because an implied subject matter limitation on the Treaty Power was a given at the time Holland was written, it was enough to answer the states' rights question in that case by pointing out that the Tenth Amendment only reserves those powers that are not delegated and that "the power to make treaties is delegated expressly." 252 U.S. at 432, 40 S.Ct. 382. Thus, Holland's statement that "there can be no dispute about the validity" of a statute implementing a valid treaty, id., is
3. The Necessary and Proper Clause
Thus, because the Convention falls comfortably within the Treaty Power's traditional subject matter limitation, the Act is within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention. Bond argues that it does.
She says that the Act covers a range of activity not actually banned by the Convention and thus cannot be sustained by the Necessary and Proper Clause. Whether that argument amounts to a facial or an as-applied attack on the Act, see supra note 5, it fails. We stated in Bond I that "Section 229 ... closely adheres to the language of the ... Convention," 581 F.3d at 138, and so it does. True, as Bond notes, the Convention bans persons from using, developing, acquiring, stockpiling, or retaining chemical weapons, 32 I.L.M. at 804, while the Act makes it unlawful to "receive, stockpile, retain, own, possess, use, or threaten to use" a chemical weapon, 18 U.S.C. § 229(a)(1), but those differences in wording do not prove that the Act has materially expanded on the Convention. See United States v. Belfast, 611 F.3d 783, 806 (11th Cir.2010) ("[T]he existence of slight variances between a treaty and its congressional implementing legislation do not make the enactment unconstitutional; identicality is not required."). The meaning of the list in the former seems rather to fairly encompass the latter (with the possible exception of the "threaten to use" provision of the Act) and, if the Act goes beyond the Convention at all, does not do so in the "use" aspect at issue here.
So while Bond's prosecution seems a questionable exercise of prosecutorial discretion,
In short, because the Convention pertains to the proliferation and use of chemical weapons, which are matters plainly relating to war and peace, we think it clear that the Convention falls within the Treaty Power's core. See supra note 18. Consequently, we cannot say that the Act disrupts the balance of power between the federal government and the states, regardless of how it has been applied here. See Gonzales v. Raich, 545 U.S. 1, 23, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) ("[W]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class." (citations and internal quotation marks omitted));
For the foregoing reasons, we will affirm the judgment of conviction.
RENDELL, Circuit Judge, concurring.
I fully agree with the Majority's reasoning and result. I write separately to cast the issue before us in a somewhat different light, by expanding upon two aspects of the Majority's reasoning which, I believe, decide this case. As it crystallized before us at oral argument, Ms. Bond's challenge has little to do with the validity of the Convention. Her problem lies with the Act. She contends that the structure of federal-state relations is such that the Act should not apply to her actions, namely, conduct involving a domestic dispute that could be prosecuted under state law.
I consider two questions raised by her argument: What is legally wrong with the Act, which reaches Ms. Bond's conduct?; and, What is wrong with the Act's application to Ms. Bond, given the structure of federal-state relations? The answer to both is: Nothing.
As to the first question, nothing "wrong" occurred at the moment Congress passed the Act. As the Majority has thoroughly discussed, the Convention itself is valid—
In examining the constitutionality of Congress's exercise of its Necessary and Proper Power, we need not consider whether the prosecution of Ms. Bond is necessary and proper to complying with the Convention, as she would have us do. In other words, she argues that no nation-state would submit that the United States has failed to comply with its obligations under the Convention if the federal government did not prosecute Ms. Bond under the Act. But that is not the appropriate test. Examining the scope of Congress's Necessary and Proper Power by definition requires us to examine the Act, not its enforcement. To determine if the Act is necessary and proper, we ask whether it bears a rational relationship to the Convention. See Comstock, 130 S.Ct. at 1956 ("[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power."). Ms. Bond's actions fall plainly within the terms of the Act, and the Act bears a rational relationship to the Convention. So ends the Necessary and Proper inquiry.
The foregoing conclusion is enough to affirm Ms. Bond's conviction. As the Majority correctly reasons, Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), forecloses challenging a valid statute implementing a valid treaty on Necessary and Proper grounds or federalism grounds. See Maj. Op. at 163-65; Holland, 252 U.S. at 432, 40 S.Ct. 382 ("If the treaty is valid there can be no dispute about the validity of the statute" under the Necessary and Proper Clause).
But even if Ms. Bond were able to assert a federalism challenge to her conviction, she proposes no principle of federalism that would limit the federal government's authority to prosecute her under the Act. Thus, as to the second question, Ms. Bond argues that if the statute is applied to her, and, is thus read to "criminalize every malicious use of poisoning," then principles of federalism are violated by disturbing the division of power between the federal government and the states. (3d Cir. Argument at 15.) As appealing as the argument sounds—that a federal statute should not reach an essentially local offense like this—there is in fact no principled reason to limit the Act's reach when her conduct
Ms. Bond continues to urge otherwise, asking us to consider the "world where the Supreme Court recognizes that the Tenth Amendment is primarily about protecting individual liberty," (3d Cir. Argument at 74), and to find controlling here cases like New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), and Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), in which the Supreme Court recognized that some acts of Congress, even if they are otherwise valid under an enumerated power, can run afoul of the Tenth Amendment. But this case is not like New York or Printz, in which Congress wrongfully commandeered states' legislative processes and public officials. Nothing in those cases suggests a principle of federalism that would apply to this case.
Moreover, it is not enough to urge, as Ms. Bond does, that Pennsylvania law and authorities are equally able to handle, and punish, this conduct so that, from a federalism standpoint, we should leave the matter to Pennsylvania. That view simply misstates the law. We have a system of dual sovereignty. Instances of overlapping federal and state criminalization of similar conduct abound. But Ms. Bond argues that here, unlike the case with other federal crimes, no federal interest is being served by prosecuting every malicious use of a chemical. That argument fails for two reasons. First, there exists nowhere in the law a rule requiring that a statute implementing a treaty contain an element explicitly tying the statute to a federal interest so as to ensure that a particular application of the statute is constitutional. Cf. United States v. Wilson, 73 F.3d 675, 685 (7th Cir.1995) (reasoning that a jurisdictional element is not constitutionally required in a federal criminal statute enacted pursuant to Congress's Commerce Clause authority). Second, even if we were to require that there be a clear federal interest, Ms. Bond incorrectly characterizes the federal interest that is represented by her prosecution as one in prosecuting every malicious use of a chemical. Rather, the federal interest served is twofold: combating the use and proliferation of chemical weapons, and complying with the United States' obligations under a valid treaty.
In sum, Congress passed the Act, which is constitutionally sound legislation, to implement the Convention, a constitutionally sound treaty. Ms. Bond's appeal generally to federalism, rather than to a workable principle that would limit the federal government's authority to apply the Act to her, is to no avail.
The real culprits here are three. First, the fact pattern. No one would question a prosecution under the Act if the defendant were a deranged person who scattered potassium dichromate and 10-chloro-10H-phenoxarsine, the chemicals which Ms. Bond used, on the seats of the New York subway cars. While that defendant could be punished under state law, applying the Act there would not offend our sensibilities. The application, however, to this "domestic dispute," somehow does.
Second, the "use" of chemical weapons as prescribed in the Act has an admittedly broad sweep. See Maj. Op. at 154 n. 7; Chemical Weapons Convention, art. VII.1(a), 32 I.L.M. at 810 (requiring each signatory nation to "[p]rohibit natural and legal persons anywhere on its territory ... from undertaking any activity prohibited... under this Convention, including enacting penal legislation with respect to such activity"). Because the Act tracks the Convention, however, Congress had the power to criminalize all such uses. Perhaps, in carrying out the United States' treaty obligations, Congress could have created a more expansive exception for "peaceful purposes," but it did not.
Lastly, the decision to prosecute is troubling. The judgment call to prosecute Ms. Bond under a chemical weapons statute rather than allowing state authorities to process the case is one that we question. But we see that every day in drug cases. Perhaps lured by the perception of easier convictions and tougher sentences, prosecutors opt to proceed federally. See Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. Cal. L.Rev. 643, 668-75 (1997). There is no law against this, or principle that we can call upon, to limit or regulate it.
While the Majority opinion explores arguments regarding the limits of the Treaty Power, I find Ms. Bond's argument to be much more limited in scope, although equally unsupportable. I agree that we should affirm the judgment of the District Court.
AMBRO, Circuit Judge, concurring.
I concur in the result reached by Judge Jordan's thoughtful opinion. I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that "[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government." 252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed. 641 (1920).
Since Holland, Congress has largely resisted testing the outer bounds of its treaty-implementing authority. See Peter J. Spiro, Resurrecting Missouri v. Holland, 73 Mo. L.Rev. 1029 (2008). But if ever there were a statute that did test those limits, it would be Section 229. With its shockingly broad definitions, Section 229 federalizes purely local, run-of-the-mill criminal conduct. The statute is a troublesome example of the Federal Government's appetite for criminal lawmaking.
I hope that the Supreme Court will soon flesh out "[t]he most important sentence in the most important case about the constitutional law of foreign affairs," Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L.Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.
The Virginia Debates, supra, at 514-15.
Nevertheless, while the outer boundaries of the Treaty Power may be hard to delineate, we can safely say that certain kinds of treaties fall within the core of that power, namely those dealing with war, peace, foreign commerce, and diplomacy directed to those ends. See The Federalist No. 45 (James Madison) (stating that the Treaty Power "will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce"); The Federalist No. 64 (John Jay) (stating the "power of making treaties is an important one, especially as it relates to war, peace, and commerce"). As to treaties of such character, it is hard to argue with the reasoning in Holland that, because "the power to make treaties is delegated expressly," 252 U.S. at 432, 40 S.Ct. 382, the Tenth Amendment has nothing meaningful to say. However, just as some treaties may fall comfortably within the traditionally understood bounds of the Treaty Power, some may be negotiated that will plainly fall outside that scope. If such a treaty were challenged, a court would be bound to take up an issue not present here, namely whether and when a treaty has reached a constitutional boundary, see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."); cf. Baker, 369 U.S. at 211, 82 S.Ct. 691 (observing that not "every case or controversy which touches foreign relations lies beyond judicial cognizance"), recognizing that a treaty falling outside the limits of the Treaty Power would be unconstitutional as ultra vires, cf. Joseph Story, Commentaries on the Constitution of the United States 339 (Melville M. Bigelow, ed. 5th ed. 1994) (1891) ("A treaty to change the organization of the government, or annihilate its sovereignty, to overturn its republican form, or to deprive it of its constitutional powers, would be void."). The deliberately vague boundaries of the Treaty Power would probably relegate that court to the unenviable position of saying it knew a violation when it saw one.
Before the outer limits of the treaty power are reached, however, it may be that federalism does have some effect on a treaty's constitutionality. While it is not our prerogative to ignore Holland's rejection of federalism limitations upon the Treaty Power, the Supreme Court could clarify whether principles of federalism have any role in assessing an exercise of the Treaty Power that goes beyond the traditionally understood subject matter for treaties. Holland itself indicates that "invisible radiation[s] from the general terms of the Tenth Amendment" may be pertinent in deciding whether there is any space between obviously valid treaties and obviously ultra vires treaties and whether, in that space, some judicial review of treaties and their implementing legislation may be undertaken to preserve the federal structure of our government. The "invisible radiation[s]" imagery, 252 U.S. at 433-34, 40 S.Ct. 382, is unusual but, in light of current conceptions about the breadth of the Treaty Power, it may well be worth taking seriously. Cf. Printz, 521 U.S. at 921-22, 117 S.Ct. 2365 (stating that the concept of dual sovereignty was "one of the Constitution's structural protections of liberty").
(3d Cir. Argument at 13.)