Tuesday, November 05, 2013

What Bond is Not About

Marty Lederman

I'll have more shortly about this morning's argument in Bond v. United States.  But for now, simply a quick note to say that Gerald Magliocca's post about congressional-executive agreements is inapposite to the question presented.

The arguments in the Bond case involve the scope of the treaty power and, more specifically, the scope of Congress's Necessary and Proper power to implement treaties so as to ensure U.S. compliance with our international obligations.  If the President and the Senate do not use the treaty power--if the U.S. enters into an international agreement not by and with the advice and consent of two-thirds of the Senate but instead via the alternative of a congressional-executive agreement, i.e., by statute--then that statute must independently be authorized by one or more Article I authorities.  It would not be legislation "Necessary and Proper to carry into Execution" a treaty.  And some agreements must take the form of treaties rather than congressional-executive agreements precisely because there would be no Article I authority for a stand-alone statute.

At issue in Bond, not surprisingly, is a treaty ratified by the Senate--the Chemical Weapons Convention--and a statute implementing it.  The Solicitor General's argument about the structural protections associated with treaties, then, is directly on-point and responsive to the concern about the prospect of an unlimited federal power.  Congressional-executive agreements got nothing to do with it.

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