U.S. v. BOND 149

149U.S. v. BONDCite as 681 F.3d 149 (3rd Cir. 2012)

of bringing a collective action does notmean that individual attempts at concili-ation were intended to be barred.

Id. at 32, 111 S.Ct. 1647 (internal quotationmarks omitted). As the passage from Gil-mer reflects, the ADEA expressly providesfor a collective action; a fortiori, the sameresult obtains under the antitrust laws,which do not. The only right to an anti-trust class action is ‘‘merely a proceduralone, arising under Fed.R.Civ.P. 23, thatmay be waived by agreeing to an arbitra-tion clause.’’ Johnson v. W. SuburbanBank, 225 F.3d 366, 369 (3d Cir.2000) (en-forcing, due to absence of congressionalintent to the contrary, a bilateral arbitra-tion clause ‘‘even though [such clauses]may render class actions to pursue statuto-ry claims TTT unavailable’’).

JOS iE A. CABRANES, Circuit Judge,dissenting from the denial of rehearing inbanc:

I concur fully in the thorough opinion ofChief Judge Jacobs dissenting from thedenial of in banc review. I write separate-ly simply to underscore that the issue athand is indisputably important, creates acircuit split, and surely deserves furtherappellate review. This is one of thoseunusual cases where one can infer that thedenial of in banc review can only be ex-plained as a signal that the matter can andshould be resolved by the Supreme Court.

REENA RAGGI, Circuit Judge, withwhom Judge WESLEY joins, dissentingfrom the denial of rehearing en banc:

I respectfully dissent from the denial ofen banc review in this case. The paneldecision to hold a class action waiver unen-forceable is at odds with Coneff v. AT & TCorp., 673 F.3d 1155 (9th Cir.2012). Thiscircuit split appears unwarranted in lightof controlling Supreme Court precedentfor the reasons forcefully advanced byChief Judge Jacobs in his opinion dissent-

ing from the denial of rehearing en banc.While I identify much merit in the ChiefJudge’s analysis, I do not join in his opin-ion because I think it would be useful tohave the issues explored further by the fullcourt in the adversarial context of an enbanc argument. To the extent a majorityof the court maintains this circuit splitwithout further consideration, I must dis-sent.

,

UNITED STATES of America

v.

Carol Anne BOND, Appellant.

No. 08–2677.

United States Court of Appeals,Third Circuit.

Argued Nov. 16, 2011.

Filed: May 3, 2012.

Background: Defendant was convicted byguilty plea in the United States DistrictCourt for the Eastern District of Pennsyl-vania, James T. Giles, J., of possessing andusing a chemical weapon and mail theft,and she appealed. The Court of Appeals,Ambro, Circuit Judge, 581 F.3d 128, af-firmed, and certiorari was granted. TheSupreme Court, Justice Kennedy, ––– U.S.––––, 131 S.Ct. 2355, 180 L.Ed.2d 269,reversed and remanded.

Holding: On remand, the Court of Ap-peals, Jordan, Circuit Judge, held thatChemical Weapons Convention Implemen-tation Act did not exceed Congress’ powerunder Necessary and Proper Clause.

Affirmed.

150 681 FEDERAL REPORTER, 3d SERIES

Rendell, Circuit Judge, filed a concurringopinion.

Ambro, Circuit Judge, filed a separate con-curring opinion.

1. Weapons O111

Defendant’s use of highly toxic chemi-cals with intent to harm a former frienddid not fall under Chemical Weapons Con-vention Implementation Act’s peacefulpurpose exception; defendant’s use ofchemicals was not related to an industrial,agricultural, research, medical, or pharma-ceutical activity, as contemplated by excep-tion. 18 U.S.C.A. § 229(a)(1).

2. Treaties O7

United States O22

When there is a valid treaty, Congresshas authority to enact implementing legis-lation under the Necessary and ProperClause, even if it might otherwise lack theability to legislate in the domain in ques-tion; however, the legislation must meetthe Clause’s general requirement that leg-islation implemented under that Clause berationally related to the implementation ofa constitutionally enumerated power.U.S.C.A. Const. Art. 1, § 8, cl. 18.

3. States O4.16(2)

Treaties O11

As long as the effectuating legislationbears a rational relationship to a validtreaty under the Necessary and ProperClause, the treaty and associated legisla-tion are simply not subject to TenthAmendment scrutiny, no matter how farinto the realm of states’ rights the Presi-dent and Congress may choose to venture.U.S.C.A. Const. Art. 1, § 8, cl. 18;U.S.C.A. Const. Art. 2, § 2, cl. 2; U.S.C.A.Const.Amend. 10.

4. United States O22

Weapons O106(4)

Chemical Weapons Convention Imple-mentation Act, which makes it unlawful forany person knowingly to develop, produce,possess, or use, any chemical weapon, wasa valid exercise of congressional powerunder Necessary and Proper Clause; Actclosely adhered to, and did not materiallyexpand, language of Convention. U.S.C.A.Const. Art. 1, § 8, cl. 18; 18 U.S.C.A.§ 229(a)(1).

Paul D. Clement [Argued], Bancroft,Ashley C. Parrish, King & Spalding,Washington, DC, Adam M. Conrad, King& Spalding, Charlotte, NC, Robert E.Goldman, Fountainville, PA, Eric E. Reed,Fox Rothschild, Philadelphia, PA, for Ap-pellant.

Paul G. Shapiro [Argued], Office ofUnited States Attorney, Philadelphia, PA,for Appellee.

Before: RENDELL, AMBRO, andJORDAN, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

This case is before us on remand fromthe Supreme Court, which vacated our ear-lier judgment that Appellant Carol AnneBond lacked standing to challenge, onTenth Amendment grounds, her convictionunder the penal provision of the ChemicalWeapons Convention Implementation Actof 1998, 18 U.S.C. § 229 (the ‘‘Act’’), whichimplements the 1993 Chemical WeaponsConvention, 32 I.L.M. 800 (1993) (the‘‘Convention’’). The Supreme Court deter-mined that Bond does have standing toadvance that challenge, and returned the


case to us to consider her constitutionalargument.

In her merits argument, Bond urges usto set aside as inapplicable the landmarkdecision Missouri v. Holland, 252 U.S.416, 40 S.Ct. 382, 64 L.Ed. 641 (1920),which is sometimes cited for the proposi-tion that the Tenth Amendment has nobearing on Congress’s ability to legislate infurtherance of the Treaty Power in ArticleII, § 2 of the Constitution. Cognizant ofthe widening scope of issues taken up ininternational agreements, as well as therenewed vigor with which principles of fed-eralism have been employed by the Su-preme Court in scrutinizing assertions offederal authority, we agree with Bond thattreaty-implementing legislation ought not,by virtue of that status alone, stand im-mune from scrutiny under principles offederalism. However, because the Con-vention is an international agreement witha subject matter that lies at the core of theTreaty Power and because Holland in-structs that ‘‘there can be no dispute aboutthe validity of [a] statute’’ that implementsa valid treaty, 252 U.S. at 432, 40 S.Ct.382, we will affirm Bond’s conviction.

I. Factual Background and ProceduralHistory

A. Facts

Bond’s criminal acts are detailed in ourprior opinion, United States v. Bond, 581F.3d 128, 131–33 (3d Cir.2009) (‘‘Bond I ’’),and in the Supreme Court’s opinion, Bondv. United States, ––– U.S. ––––, 131 S.Ct.2355, 2360–61, 180 L.Ed.2d 269 (2011)(‘‘Bond II ’’), so we provide only a briefrecitation here. Suffice it to say that,while Bond was employed by the chemicalmanufacturer Rohm and Haas, she learnedthat her friend Myrlinda Haynes was

pregnant and that Bond’s own husbandwas the baby’s father. Bond became in-tent on revenge. To that end, she setabout acquiring highly toxic chemicals,stealing 10–chlorophenoxarsine from heremployer and purchasing potassium dich-romate over the Internet. She then ap-plied those chemicals to Haynes’s mailbox,car door handles, and house doorknob.Bond’s poisonous activities were eventuallydiscovered and she was indicted on twocounts of acquiring, transferring, receiv-ing, retaining, or possessing a chemicalweapon, in violation of the Act. She was,in addition, charged with two counts oftheft of mail matter, in violation of 18U.S.C. § 1708.

B. Procedural History

Bond filed a motion to dismiss thecounts that alleged violations of the Act.She argued that the Act was unconstitu-tional, both facially and as applied to her.More particularly, she said that the Actviolated constitutional ‘‘fair notice’’ re-quirements, that it was inconsistent withthe Convention it was meant to implement,and that it represented a breach of theTenth Amendment’s protection of statesovereignty. Emphasizing that last point,Bond contended that neither the Com-merce Clause, nor the Necessary andProper Clause in connection with the Trea-ty Power, could support the expansivewording of the statute, let alone her prose-cution. (See App. at 59 (arguing that,‘‘[g]iven the localized TTT scope of the con-duct alleged, TTT application of 18 U.S.C.§ 229 signals a massive and unjustifiableexpansion of federal law enforcement intostate-regulated domain’’).) The govern-ment’s response has shifted over time,1 but

1. The government has, at different stages ofthis case, been willing to jettison one legalposition and adopt a different one, as seemed

convenient. Before the District Court, it ex-pressly disclaimed the Commerce Clause as abasis for Congress’s power to approve the Act.


it has been consistent in maintaining thatthe Act is a constitutional exercise of Con-gress’s authority to enact treaty-imple-menting legislation under the Necessaryand Proper Clause. The District Courtaccepted that argument and denied Bond’smotion to dismiss.

We affirmed on appeal, concluding thatBond lacked standing to pursue her TenthAmendment challenge and that the Actwas neither unconstitutionally vague norunconstitutionally overbroad.2 Bond I,581 F.3d at 139. The Supreme Courtgranted certiorari to address the questionof ‘‘[w]hether a criminal defendant convict-ed under a federal statute has standing tochallenge her conviction on grounds that,as applied to her, the statute is beyond thefederal government’s enumerated powersand inconsistent with the Tenth Amend-ment.’’ Petition for Writ of Certiorari,Bond v. United States (No. 09–1227), 2010

WL 1506717 at *i; see Bond v. UnitedStates, ––– U.S. ––––, 131 S.Ct. 455, 178L.Ed.2d 285 (2010). Ultimately, the Courtconcluded that Bond ‘‘does have standingto challenge the federal statute.’’ Bond II,131 S.Ct. at 2360. The case was remandedto us to address the ‘‘issue of the statute’svalidity’’ which, as the Court instructed,‘‘turns in part on whether the law can bedeemed ‘necessary and proper for carryinginto Execution’ the President’s Article II,§ 2 Treaty Power.’’ Id. at 2367 (quotingU.S. Const. art. I, § 8, cl. 18).

II. Discussion3

In Missouri v. Holland, the SupremeCourt declared that, if a treaty is valid,‘‘there can be no dispute about the validityof the statute [implementing it] under Ar-ticle 1, Section 8, as a necessary and prop-er means to execute the powers of theGovernment.’’ 4 252 U.S. at 432, 40 S.Ct.

(See E.D. Pa. No. 07–cr–528, doc. no. 30, at 7(‘‘Title 18, United States Code, Section 229was not enacted under the interstate com-merce authority but under Congress’s author-ity to implement treaties.’’).) The governmentstill maintained that position the first time itappeared before us, relying only on the Nec-essary and Proper Clause in support of theAct’s constitutionality. (See Appellee’s InitialBr. at 20–32.) Once before the SupremeCourt, however, the government decided thatthis is really a Commerce Clause case andthat the position it had pressed before us issecondary. That change was in addition toabandoning the position on standing that ithad previously taken. See infra note 2.

2. We determined that Bond lacked standingto pursue her Tenth Amendment challengeafter requesting supplemental briefing on thequestion of whether she ‘‘ha[d] standing toassert that 18 U.S.C. § 229 encroaches onstate sovereignty in violation of the TenthAmendment to the United States Constitutionabsent the involvement of a state or its instru-mentalities[.]’’ (United States v. Bond, No.08–2677, 08/14/2009 Letter to Counsel.) Thegovernment responded that Bond lacked suchstanding under Tennessee Electric Power Co. v.Tennessee Valley Authority, 306 U.S. 118, 59

S.Ct. 366, 83 L.Ed. 543 (1939), which heldthat ‘‘appellants, absent the states or theirofficers, have no standing TTT to raise anyquestion under the [Tenth] [A]mendment,’’ id.at 144, 59 S.Ct. 366. (United States v. Bond,No. 08–2677, 08/20/2009 Letter from Appel-lee.) Before the Supreme Court, however,the government reversed course and arguedthat Bond did have standing to make a TenthAmendment challenge. See Bond II, 131S.Ct. at 2361 (describing the government’sinitial ‘‘position that Bond did not have stand-ing’’ and the changed position before the Su-preme Court that ‘‘Bond does have stand-ing’’).

3. The District Court had jurisdiction under 18U.S.C. § 3231. We have jurisdiction under28 U.S.C. § 1291 and 18 U.S.C. § 3742, andreview de novo a challenge to the constitution-ality of a criminal statute, Bond I, 581 F.3d at133.

4. The referenced section of the Constitution isthe Necessary and Proper Clause, which pro-vides Congress with the power ‘‘[t]o make allLaws which shall be necessary and proper forcarrying into Execution the foregoing Powers,and all other Powers vested by this Constitu-


382. Implicit in that statement is thepremise that principles of federalism willordinarily impose no limitation on Con-gress’s ability to write laws supportingtreaties, because the only relevant ques-tion is whether the underlying treaty isvalid. See id. at 432, 434, 40 S.Ct. 382(stating that ‘‘it is not enough to refer tothe Tenth Amendment, reserving the pow-ers not delegated to the United States’’because the Treaty Power is delegated,but acknowledging the possibility thatthere may sometimes be ‘‘invisible radia-tion[s] from the general terms of theTenth Amendment’’). Reasoning that areading of Holland that categorically re-jects federalism as a check on Congress’streaty-implementing authority is of ques-tionable constitutional validity, Bond asksus to invalidate her conviction because theAct is unconstitutional as applied to her.5

She says that to hold otherwise wouldoffend the Constitution’s balance of powerbetween state and federal authority by‘‘intrud[ing] TTT on the traditional state

prerogative to punish assaults.’’ (Appel-lant’s Supp. Br. at 47.)

A. Constitutional Avoidance

Bond first argues, however, that weshould avoid reaching the constitutionalquestion by construing the Act not to ap-ply to her conduct at all.6

[1] Her avoidance argument beginswith the text of the Act itself, which pro-vides, in pertinent part, that ‘‘it shall beunlawful for any person knowingly TTT todevelop, produce, otherwise acquire, trans-fer directly or indirectly, receive, stockpile,retain, own, possess, or use, or threaten touse, any chemical weapon.’’ 18 U.S.C.§ 229(a)(1). The term ‘‘chemical weapon’’is defined broadly to include any ‘‘toxicchemical and its precursors,’’ id.§ 229F(1)(A), and ‘‘[t]he term ‘toxic chemi-cal’ means any chemical which through itschemical action on life processes can causedeath, temporary incapacitation or perma-

tion in the Government of the United States,or in any Department or Officer thereof.’’U.S. Const. art. I, § 8, cl. 18.

5. It appears that Bond has abandoned herfacial challenge to the Act. Her argument,both in her supplemental briefing before usand at oral argument, is articulated as an as-applied challenge. (See, e.g., Appellant’sSupp. Br. at 26 (‘‘Bond is raising a TTT lim-ited and narrowly focused as-applied chal-lenge. She contends that, whatever its valid-ity more generally, the statute cannot beconstitutionally applied to her in the circum-stances of this case.’’); Transcript of OralArgument at 11–13, United States v. Bond,No. 08–2677 (‘‘3d Cir. Argument’’).) And,Bond’s counsel commented at oral argumentthat he was ‘‘trying TTT [to be] respectful ofthe Supreme Court’s jurisprudence that saysyou don’t lightly bring a facial challenge’’ toa statute. (3d Cir. Argument at 62.) Counselframed his argument as being that ‘‘the prin-ciple[ ] that [the statute has] offended is thatif you apply it so broadly that it criminalizesevery malicious use of poisoning, then you’ve

overridden the structural limitations on thegovernment and the division of power be-tween the federal government and thestates.’’ (Id. at 15–16.) We thus take it asgranted that, although some of her past ar-guments move into the territory of a facialchallenge, Bond is not now saying that Con-gress was without power to pass the Act butis, instead, arguing that Congress could notproperly pass it if the Act’s language is inter-preted in a way that reaches her conduct.In short, we are dealing with an as-applied,rather than a facial, challenge.

6. Bond’s constitutional avoidance argumentnecessarily presumes a serious constitutionalproblem, notwithstanding Holland. See Ed-ward J. DeBartolo Corp. v. Fla. Gulf CoastBldg. & Constr. Trades Council, 485 U.S. 568,575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)(stating the constitutional avoidance inquiryshould be undertaken in the face of ‘‘seriousconstitutional problems’’). Regardless ofHolland’s breadth, we accept Bond’s sugges-tion that it is prudent to begin our analysiswith the avoidance doctrine.


nent harm to humans or animals,’’ id.§ 229F(8)(A). Congress did put some lim-it on the sweep of the Act by excludingfrom the definition of ‘‘chemical weapon’’any chemicals and precursors ‘‘intendedfor a purpose not prohibited under thischapter as long as the type and quantity isconsistent with such a purpose.’’ Id.§ 229F(1)(A). The phrase ‘‘purpose notprohibited under this chapter,’’ is then de-fined, in part, as ‘‘[a]ny peaceful purposerelated to an industrial, agricultural, re-search, medical, or pharmaceutical activityor other activity.’’ Id. § 229F(7)(A). It isthat ‘‘peaceful purpose’’ language thatBond urges us to take as our interpretivelodestar.

Specifically, Bond argues that, by look-ing to the ‘‘peaceful purpose’’ exception, wecan employ a ‘‘common sense interpreta-tion of § 229’’ that avoids ‘‘mak[ing] everymalicious use of a household chemical’’—including her own—a federal offense.(Appellant’s Supp. Br. at 17.) All we needdo is ‘‘interpret the statute TTT to reach[only the kind of acts] that would violatethe Convention if undertaken by a signato-ry state.’’ (Id. at 14.) In other words, asBond sees it, the modifier ‘‘peaceful’’should be understood in contradistinctionto ‘‘warlike’’ (3d Cir. Argument at 23), and,when so understood, the statute will notreach ‘‘conduct that no signatory statecould possibly engage in—such as using

chemicals in an effort to poison a romanticrival,’’ as Bond did. (Appellant’s Supp. Br.at 40.) That interpretation is tempting, inlight of the challenges inherent in the Act’sremarkably broad language,7 but, as weheld the first time we had this case, Bond’sbehavior ‘‘clearly constituted unlawful pos-session and use of a chemical weapon un-der § 229.’’ Bond I, 581 F.3d at 139.

That holding is in better keeping withthe Act’s use of the term ‘‘peaceful pur-pose’’ than the construction Bond wouldhave us give it. The ordinary meaning of‘‘peaceful’’ is ‘‘untroubled by conflict, agita-tion, or commotion,’’ ‘‘of or relating to astate or time of peace,’’ or ‘‘devoid of vio-lence or force,’’ Merriam–Webster’s Colle-giate Dictionary 852 (10th ed. 2002), andBond’s ‘‘deploy[ment of] highly toxic chem-icals with the intent of harming Haynes,’’Bond I, 581 F.3d at 139, can hardly becharacterized as ‘‘peaceful’’ under thatword’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 notto reach ‘‘traditionally local criminal con-duct’’ since the statute was ‘‘susceptible oftwo constructions’’ (citation and internalquotation marks omitted)). The term‘‘peaceful,’’ moreover, does not appear inisolation: the Act only excludes from itsambit ‘‘peaceful purpose[s] TTT related to

7. The Act’s breadth is certainly striking, see-ing as it turns each kitchen cupboard andcleaning cabinet in America into a potentialchemical weapons cache. Cf. Transcript ofOral Argument at 29, Bond v. United States,––– U.S. ––––, 131 S.Ct. 2355, 180 L.Ed.2d269 (2011) (Justice Alito’s statement duringoral argument that ‘‘pouring a bottle of vine-gar in [a] friend’s goldfish bowl’’ could consti-tute the use of a chemical weapon under theAct and expose a person to years in federalprison). We observed as much the last timethis case was before us, noting, as Bond hadherself acknowledged at the time, that theAct’s wide net was cast ‘‘for obvious reasons.’’

Bond I, 581 F.3d at 139. Ultimately, howev-er, we concluded that the Act was not uncon-stitutionally overbroad. See id. (observingthat the Act is ‘‘certainly broad,’’ but notunconstitutionally so). Bond did not chal-lenge that determination, see Petition for Writof Certiorari, Bond v. United States (No. 09–1227), 2010 WL 1506717 at *i, and it remainsundisturbed. That the Act is not unconstitu-tionally overbroad, of course, does not pre-clude Bond from arguing, as she now does,that the Act offends the Constitution’s divisionof power between the federal government andthe states to the extent it is used to make herconduct a federal crime.


an industrial, agricultural, research, med-ical, or pharmaceutical activity or otheractivity.’’ 18 U.S.C. § 229F(7)(A) (empha-sis added). Bond’s attacks on Haynes—even if non-warlike—were certainly not‘‘related to an industrial, agricultural, re-search, medical, or pharmaceutical activi-ty.’’ Id. Nor can her use of chemicals besaid to be a ‘‘peaceful purpose[ ] TTT relat-ed to an TTT other activity,’’ because re-garding her assaultive behavior as suchwould improperly expand § 229F(7)(A)’sscope. See, e.g., Gooch v. United States,297 U.S. 124, 129, 56 S.Ct. 395, 80 L.Ed.522 (1936) (‘‘The rule of ejusdem generisTTT [o]rdinarily TTT limits general termswhich follow specific ones to matters simi-lar to those specified.’’).

Thus, while one may well questionwhether Congress envisioned the Act be-ing applied in a case like this, the languageitself does cover Bond’s criminal conduct.And, given the clarity of the statute, wecannot avoid the constitutional questionpresented. See United States v. Stevens,––– U.S. ––––, 130 S.Ct. 1577, 1591, 176L.Ed.2d 435 (2010) (stating that only‘‘ ‘ambiguous statutory language [should]be construed to avoid serious constitutionaldoubts’ ’’ (alteration in original) (citationomitted)); 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’ evento avoid a constitutional question.’’ (quot-ing 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 torewrite a statute, and we see no soundbasis on which we can accept Bond’s con-struction of the Act without usurping Con-

gress’s legislative role. Though we agreeit would be better, if possible, to apply alimiting construction to the Act ratherthan consider Bond’s argument that it isunconstitutional, see Burton v. UnitedStates, 196 U.S. 283, 295, 25 S.Ct. 243, 49L.Ed. 482 (1905) (‘‘It is not the habit of thecourt to decide questions of a constitution-al nature unless absolutely necessary to adecision of the case’’), the statute speakswith sufficient certainty that we feel com-pelled to consider the hard question pre-sented in this appeal.

B. Constitutionality of the Act as Ap-plied

Understanding whether application ofthe Act to Bond violates the structurallimits of federalism begins with the TenthAmendment, which Bond cites and whichprovides that ‘‘[t]he powers not delegatedto the United States by the Constitution,nor prohibited by it to the States, arereserved to the States respectively, or tothe people.’’ U.S. Const. amend. X. Thattext, as the Supreme Court has observed,‘‘confirms that the power of the FederalGovernment is subject to limits that mayTTT reserve power to the States.’’ NewYork v. United States, 505 U.S. 144, 157,112 S.Ct. 2408, 120 L.Ed.2d 120 (1992).Thus, it encapsulates the principles of fed-eralism upon which our nation was found-ed. See D.A. Jeremy Telman, A TruismThat Isn’t True? The Tenth Amendmentand Executive War Power, 51 Cath.U.L.Rev. 135, 143–44 (2001) (describingthe argument that ‘‘the Tenth Amendmenthas a declaratory function and provides arule of constitutional interpretation ratherthan a rule of constitutional law’’).8

8. We do not need to determine whether theTenth Amendment is a tautology reflectingthe structural limitations on federal powerembodied in the system of dual sovereigntyestablished by the Constitution, or, as has

sometimes been suggested, serves as an inde-pendent check on federal power. See NewYork, 505 U.S. at 156, 160, 112 S.Ct. 2408(describing the argument that, even whenCongress has the authority to regulate, ‘‘the


Endeavoring to discover what impactthe Tenth Amendment may have on trea-ty-implementing legislation immediatelyleads, as we have indicated, to the Su-preme Court’s decision in Missouri v. Hol-land. The statute at issue in that case,the Migratory Bird Treaty Act, 16 U.S.C.§ 703, implemented a treaty between theUnited States and Great Britain thatbanned the hunting of migratory birdsduring certain seasons. Holland, 252 U.S.at 431, 40 S.Ct. 382. The State of Mis-souri brought suit against a U.S. gamewarden, arguing that the statute unconsti-tutionally interfered with the rights re-served to Missouri by the Tenth Amend-ment because Missouri was free to do whatit wished with the birds while they werewithin its borders. Id. at 431–32, 40 S.Ct.382. The Supreme Court, speakingthrough Justice Holmes, rejected that ar-gument, reasoning that ‘‘it is not enough torefer to the Tenth Amendment, reservingthe powers not delegated to the UnitedStates, because by Article 2, Section 2, thepower to make treaties is delegated ex-pressly.’’ Id. at 432, 40 S.Ct. 382.

As noted earlier, the Court made it clearthat Congress may, under the Necessaryand Proper Clause, legislate to implement

a valid treaty, regardless of whether Con-gress would otherwise have the power toact or whether the legislation causes anintrusion into what would otherwise bewithin the state’s traditional province. Id.at 432–33, 40 S.Ct. 382. While the Courtdid allow that there may be ‘‘qualificationsto the treaty-making power,’’ it also said,somewhat obscurely, that they had to befound ‘‘in a different way’’ than one mightfind limitations on other grants of power tothe federal government. Id. at 433, 40S.Ct. 382. After implying that Congress’spowers are particularly sweeping whendealing with ‘‘matters requiring nationalaction,’’ the Court suggested one limitationon the Treaty Power: if the implementa-tion of a treaty ‘‘contravene[s] any prohibi-tory words to be found in the Constitu-tion,’’ then it may be unconstitutional. Id.(citation omitted). Since the treaty inquestion did not do that, the only remain-ing question was ‘‘whether it [was] forbid-den by some invisible radiation from thegeneral terms of the Tenth Amendment.’’Id. at 433–34, 40 S.Ct. 382. The Courtconcluded that it was not. See id. (reason-ing that, while ‘‘the great body of privaterelations usually fall within the control ofthe State, TTT a treaty may override itspower’’). Finally, the Court assumed with-

Tenth Amendment limits the power of Con-gress to regulate in the way it has chosen,’’though noting that its actual limit ‘‘is notderived from the text’’ of the Tenth Amend-ment as the Tenth Amendment is ‘‘essentiallya tautology’’); Nat’l League of Cities v. Usery,426 U.S. 833, 842, 96 S.Ct. 2465, 49 L.Ed.2d245 (1976) (recognizing a ‘‘limit[ ] upon thepower of Congress to override state sover-eignty, even when exercising its otherwiseplenary powers TTT which are conferred byArt. I of the Constitution’’ and that ‘‘an ex-press declaration of this limitation is found inthe Tenth Amendment’’), overruled by Garciav. San Antonio Metro. Transit Auth., 469 U.S.528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985);cf. Gerard N. Magliocca, A New Approach toCongressional Power: Revisiting the LegalTender Cases, 95 Geo. L.J. 119, 125 n. 30

(2006) (suggesting the Tenth Amendment’s‘‘independent force’’ is limited to ‘‘[l]aws thatregulate states qua states’’). Regardless ofwhether the Tenth Amendment has ‘‘indepen-dent force of its own,’’ Bond II, 131 S.Ct. at2367, we understand our constitutional inqui-ry to turn on whether principles of federalismare violated by the Act, in light of the Consti-tution’s delegation to the President of thepower ‘‘to make Treaties, provided two thirdsof the Senators present concur,’’ U.S. Const.art. II, § 2, cl. 2, and to Congress of thepower to enact ‘‘all Laws which shall be nec-essary and proper for carrying into ExecutionTTT all other Powers vested by th[e] Constitu-tion in the Government of the United States,or in any Department or Officer thereof,’’U.S. Const. art. I, § 8, cl. 18.


out further discussion that, because thetreaty was valid, so was the implementingstatute. See id. at 435, 40 S.Ct. 382 (‘‘Wesee nothing in the Constitution that com-pels the Government to sit by while a foodsupply is cut off and the protectors of ourforests and our crops are destroyed.’’).

[2, 3] In sum, Holland teaches that,when there is a valid treaty, Congress hasauthority to enact implementing legislationunder the Necessary and Proper Clause,even if it might otherwise lack the abilityto legislate in the domain in question.9

See United States v. Lara, 541 U.S. 193,201, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004)(‘‘[A]s Justice Holmes pointed out [in Hol-land ], treaties made pursuant to [theTreaty Power] can authorize Congress todeal with ‘matters’ with which otherwise‘Congress could not deal.’ ’’ (quoting Hol-land, 252 U.S. at 433, 40 S.Ct. 382)). Thelegislation must, of course, meet the Nec-essary and Proper Clause’s general re-quirement that legislation implementedunder that Clause be ‘‘rationally related tothe implementation of a constitutionallyenumerated power.’’ United States v.Comstock, ––– U.S. ––––, 130 S.Ct. 1949,1956, 176 L.Ed.2d 878 (2010); see alsoMcCulloch v. Maryland, 17 U.S. (4Wheat.) 316, 421, 4 L.Ed. 579 (1819) (‘‘[A]llmeans which are appropriate, which areplainly adapted to that end, which are not

prohibited, but consist with the letter andspirit of the constitution, are constitution-al.’’). In the treaty context, that require-ment has been understood to mean that atreaty and its implementing legislationmust be rationally related to one another.United States v. Ferreira, 275 F.3d 1020,1027 (11th Cir.2001). Thus, as long as‘‘the effectuating legislation bear[s] a ra-tional relationship to’’ a valid treaty, Unit-ed States v. Lue, 134 F.3d 79, 84 (2dCir.1998), the arguable consequence ofHolland is that treaties and associatedlegislation are simply not subject to TenthAmendment scrutiny, no matter how farinto the realm of states’ rights the Presi-dent and Congress may choose to venture.See Curtis A. Bradley, The Treaty Powerand American Federalism, 97 Mich.L.Rev. 390, 395 (1998) (taking exceptionwith Holland to the extent it can be readto say that ‘‘the treaty power is immunefrom federalism restrictions because thatpower has been exclusively delegated tothe federal government’’); Erwin Cheme-rinsky, Constitutional Law: Principlesand Policies 287 (4th ed. 2011) (statingthat the Holland court ‘‘rejected the claimthat state sovereignty and the TenthAmendment limit the scope of the treatypower’’); Louis Henkin, Foreign Affairsand the U.S. Constitution 191 (2nd ed.

9. It has been argued that Holland incorrectlypermits ‘‘treaties TTT [to] expand the legisla-tive power of Congress.’’ Nicholas QuinnRosenkranz, Executing The Treaty Power, 118Harv. L.Rev. 1867, 1875 (2005). The CatoInstitute has submitted an amicus brief takingthat position, arguing against Holland ’s‘‘impl[ication] that if a treaty commits theUnited States to enact some legislation, thenCongress automatically obtains the power toenact that legislation, even if it would lacksuch power in the absence of the treaty.’’(Amicus Br. at 6.) Amicus argues that Con-gress’s authority to act in connection with theTreaty Power only permits it to enact thoselaws that are necessary and proper to permit

the President to make treaties—not to imple-ment treaties once they are agreed upon.(See id. (arguing the President cannot in-crease Congress’s power under the Necessaryand Proper Clause by entering into a treaty).)Under that view, Congress could, for exam-ple, legislate to provide funding for an officeof treaty-making, but could not have imple-mented the broadly worded Convention in-volved here. (See id. at 8 (‘‘[T]his powerwould TTT embrace any TTT laws necessaryand proper to ensuring the wise use of thepower to enter treaties.’’).) Holland remainsbinding precedent, however, and foreclosesthis line of reasoning.


1996) (‘‘What [Holland ] said, simply, wasthat the Constitution delegated powers tovarious branches of the federal govern-ment, not only to Congress; the TreatyPower was delegated to the federal treaty-makers, a delegation additional to and in-dependent of the delegations to Congress.Since the Treaty Power was delegated tothe federal government, whatever is withinits scope is not reserved to the states: theTenth Amendment is not material.’’ (inter-nal footnote omitted)). But see David M.Golove, Treaty–Making and the Nation:The Historical Foundations of the Nation-alist Conception of the Treaty Power, 98Mich. L.Rev. 1075, 1085 (2000) (noting that‘‘treaties are not immune from federalismlimitations, and nothing in [Holland ] sug-gests the contrary,’’ but acknowledgingthat ‘‘it is difficult to imagine realistic sce-narios in which treaty stipulations wouldviolate [the applicable] limitations’’).

Bond vigorously disputes the implica-tions of that conclusion. Specifically, sheargues that legal trends since the SupremeCourt’s 1920 decision in Holland make it

clear that the Tenth Amendment shouldnot be treated as irrelevant when examin-ing the validity of treaty-implementing leg-islation. (See Appellant’s Supp. Br. at 24(‘‘[I]n recent decades, the Supreme Courthas reasserted the critical role of theTenth Amendment in preserving the prop-er balance of authority between federaland state government to ensure that alllevels of government represent and remainaccountable to the People.’’).) Concludingotherwise, she asserts, would make ‘‘noth-ing TTT off-limits’’ in a world where, moreand more, ‘‘international treaties govern[ ]a virtually unlimited range of subjects andintrud[e] deeply on internal concerns.’’(See id. at 20.) That latter point is notwithout merit. Juxtaposed against in-creasingly broad conceptions of the TreatyPower’s scope, reading Holland to conferon Congress an unfettered ability to effec-tuate what would now be considered bysome to be valid exercises of the TreatyPower runs a significant risk of disruptingthe delicate balance between state and fed-eral authority.10

10. The Supreme Court has focused renewedattention on federalism over the last two dec-ades. Although many earlier cases reflect theimportance of the our Constitution’s basicprovision for dual sovereigns, see, e.g., Gregoryv. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395,115 L.Ed.2d 410 (1991) (observing that therule requiring Congress to speak clearly inorder to preempt state law ‘‘acknowledg[es]that the States retain substantial sovereignpowers under our constitutional scheme’’);South Dakota v. Dole, 483 U.S. 203, 211–12,107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (recog-nizing that Congress may not coerce thestates when exercising its power to spend),more recent cases have been particularlypointed in describing the role federalism prin-ciples should play in analyzing assertions offederal authority. That trend began at leastas early as the Court’s decision in New York v.United States, 505 U.S. 144, 112 S.Ct. 2408,120 L.Ed.2d 120 (1992), which held that thefederal government could not ‘‘comman-deer[ ] the legislative processes of the States.’’Id. at 176, 112 S.Ct. 2408 (citation and inter-

nal quotation marks omitted). After NewYork, the Court struck down legislation crimi-nalizing local conduct in United States v. Lo-pez, 514 U.S. 549, 115 S.Ct. 1624, 131L.Ed.2d 626 (1995), as beyond the CommerceClause Power. In doing so the Court recog-nized the importance of the states’ authorityto ‘‘defin[e] and enforc[e] the criminal law,’’and noted that, ‘‘[w]hen Congress criminal-izes conduct already denounced as criminalby the States, it effects a change in the sensi-tive relation between federal and state crimi-nal jurisdiction.’’ Id. at 561 n. 3, 115 S.Ct.1624 (citations and internal quotation marksomitted). In Printz v. United States, 521 U.S.898, 919, 117 S.Ct. 2365, 138 L.Ed.2d 914(1997), the Court likewise considered princi-ples of federalism in striking down legislationthat required state police to perform back-ground checks on potential gun owners. Seeid. at 919, 117 S.Ct. 2365 (noting the estab-lishment of dual sovereignties was ‘‘reflectedthroughout the Constitution’s text,’’ and hadvested in the states ‘‘ ‘a residuary and inviola-


Those concerns notwithstanding, Bonddoes not argue that the Convention itself isconstitutionally infirm. On the contrary,she admits ‘‘that a treaty restricting chem-ical weapons is a ‘proper subject[ ] of nego-tiations between our government and oth-er nations.’ ’’ (Id. at 4–5 (alteration inoriginal) (citation omitted)). Accordingly,we need not tackle, head on, whether anarguably invalid treaty has led to legisla-tion encroaching on matters traditionallyleft to the police powers of the states.Nevertheless, resolving the argumentBond does lodge against her prosecutionrequires at least some consideration ofwhether the Convention is, in fact, valid.See Holland, 252 U.S. at 432, 40 S.Ct. 382(‘‘If the treaty is valid there can be nodispute about the validity of the stat-uteTTTT’’ (emphasis added)). We thereforeturn briefly to whether the Conventionfalls within the Treaty Power’s appropriatescope, bearing in mind that Bond seems toaccept that it does.

1. The Convention’s Validity

The Constitution does not have within itany explicit subject matter limitation onthe power granted in Article II, § 2. That

section states simply that the Presidenthas the ‘‘Power, by and with the Adviceand Consent of the Senate, to make Trea-ties, provided two thirds of the Senatorspresent concur.’’ U.S. Const. art. II, § 2,cl. 2. Throughout much of American his-tory, however, including when Hollandwas handed down, it was understood thatthe Treaty Power was impliedly limited tocertain subject matters. See Bradley, su-pra, at 429 (arguing that ‘‘a subject matterlimitation [on the Treaty Power] appearsto have been assumed both during theFounding and at times during the nine-teenth century,’’ and suggesting it waslikewise assumed by the Holland court);Golove, supra, at 1288 (‘‘[V]irtually everyauthority, including the Supreme Court,has on countless occasions from the earli-est days recognized general subject matterlimitations on treaties.’’).

Contemporaneous records such as theVirginia Ratifying Convention show thatthe Founders generally accepted that thepurpose of treaties was, as James Madisonput it, to regulate ‘‘intercourse with for-eign nations,’’ and that the ‘‘exercise’’ ofthe Treaty Power was expected to be ‘‘con-sistent with’’ those ‘‘external’’ ends.11 3

ble sovereignty.’ ’’ (quoting The Federalist No.39 (James Madison))). Similarly, in UnitedStates v. Morrison, 529 U.S. 598, 120 S.Ct.1740, 146 L.Ed.2d 658 (2000), the Courtstruck down legislation making it a federaloffense to commit a crime of violence moti-vated by gender, observing that ‘‘[t]he Consti-tution requires a distinction between what istruly national and what is truly local,’’ id. at617–18, 120 S.Ct. 1740, and that there was‘‘no better example of the police power,which the Founders denied the National Gov-ernment and reposed in the States, than thesuppression of violent crime and vindicationof its victims,’’ id. at 618, 120 S.Ct. 1740.

11. Other Founders shared Madison’s under-standing that the Treaty Power would be lim-ited to matters involving foreign affairs. Cf.The Federalist No. 64 (John Jay) (noting thatthe ‘‘power of making treaties is an important

one, especially as it relates to war, peace, andcommerce’’); The Federalist No. 75 (Alexan-der Hamilton) (stating that treaties ‘‘[were]not rules prescribed by the sovereign to thesubject, but agreements between sovereignand sovereign’’). Notwithstanding theFounders’ view of the Treaty Power’s inherentlimits, there is, again, nothing in the Constitu-tion’s text explicitly confining that power.The basis for that omission is perhaps bestexplained by Madison, who, like others, rec-ognized the need for flexibility with respect tothe Treaty Power and cautioned against ex-pressly defining its scope:

I do not think it possible to enumerate allthe cases in which such external regulationswould be necessary. Would it be right todefine all the cases in which Congress couldexercise this authority[?] The definitionmight, and probably would, be defective.


The Debates in The Several State Conven-tions on the Adoption of the Constitution514–15 (Jonathan Elliot ed., 2d ed. 1941)(‘‘The Virginia Debates ’’); see The Feder-alist No. 45 (James Madison) (stating thatthe Treaty Power ‘‘will be exercised princi-pally on external objects, as war, peace,negotiation, and foreign commerce’’). AsMadison later explained, if there was

no limitation on the Treaty-making pow-er TTT, it might admit of a doubt wheth-er the United States might not be en-abled to do those things by Treaty whichare forbidden to be done by CongressTTT; but no such consequence can fol-low, for it is a sound rule of construc-tion, that what is forbidden to be doneby all the branches of Government con-jointly, cannot be done by one or moreof them separately.

5 Annals of Congress 671 (1796) (emphasisadded).

Early cases followed that reasoning andindicated that the Treaty Power is con-fined to matters traditionally understoodto be of international concern. See, e.g.,Ross v. McIntyre, 140 U.S. 453, 463, 11S.Ct. 897, 35 L.Ed. 581 (1891) (‘‘The trea-ty-making power vested in our governmentextends to all proper subjects of negotia-tion with foreign governments.’’); De Geo-froy v. Riggs, 133 U.S. 258, 266, 10 S.Ct.295, 33 L.Ed. 642 (1890) (‘‘That the treatypower of the United States extends to allproper subjects of negotiation between ourgovernment and the governments of othernations is clear.’’); Holden v. Joy, 84 U.S.(17 Wall.) 211, 243, 21 L.Ed. 523 (1872)(‘‘[I]nasmuch as the power is given, ingeneral terms, without any description ofthe objects intended to be embraced withinits scope, it must be assumed that the

framers of the Constitution intended thatit should extend to all those objects whichin the intercourse of nations had usuallybeen regarded as the proper subjects ofnegotiation and treatyTTTT’’).

That is not to say, however, that anytreaty encroaching on matters ordinarilyleft to the states was considered to bebeyond the Treaty Power’s permissibleambit. On the contrary, so long as thesubject matter limitation was satisfied—which it undoubtedly was in cases involv-ing ‘‘subjects [such as] peace, alliance,commerce, neutrality, and others of a simi-lar nature,’’ William Rawle, A View of theConstitution of the United States 65 (2ded. 1829), or, as Jay put it, ‘‘war, peace,and commerce,’’ The Federalist No. 64(John Jay)—it was accepted that treatiescould affect domestic issues. Many earlydecisions of the Supreme Court upheldtreaties of that nature, including treatiesregarding the ownership and transfer ofproperty. See, e.g., Carneal v. Banks, 23U.S. (10 Wheat.) 181, 189, 6 L.Ed. 297(1825) (treaty between the United Statesand France that allowed citizens of eithercountry to hold lands in the other). Still,it was widely accepted that the TreatyPower was inherently limited in the sub-ject matter it could properly be used toaddress, see Santovincenzo v. Egan, 284U.S. 30, 40, 52 S.Ct. 81, 76 L.Ed. 151(1931) (‘‘The treatymaking power is broadenough to cover all subjects that properlypertain to our foreign relationsTTTT’’);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 UnitedStates TTT does not extend ‘so far as toauthorize what the Constitution forbids,’TTT [but] does extend to all proper sub-

They might be restrained, by such a defini-tion, from exercising the authority where itwould be essential to the interest and safetyof the community. It is most safe, there-

fore, to leave it to be exercised as contin-gencies may arise.

The Virginia Debates, supra, at 514–15.


jects of negotiation between our govern-ment and other nations.’’), and that thepurpose of limiting the Treaty Power tomatters which ‘‘in the ordinary intercourseof nations had usually been made subjectsof negotiation and treaty’’ was to ensurethat treaties were ‘‘consistent with TTT thedistribution of powers between the generaland state governments,’’ Holmes v. Jenni-son, 39 U.S. (14 Pet.) 540, 569, 10 L.Ed.579 (1840).

Despite the long history of that view ofthe Treaty Power, the tide of opinion, atleast in some quarters, has shifted deci-sively in the last half-century. Many influ-ential voices now urge that there is nolimitation on the Treaty Power, at leastnot in the way understood from the found-ing through to the middle of the TwentiethCentury.12 See Bradley, supra, at 433 (de-scribing the ‘‘rejection of a subject matter

limitation on the treaty power’’ as ‘‘theaccepted view’’). That change is reflectedin the Restatement (Third) of Foreign Re-lations Law of the United States (1987)(the ‘‘Third Restatement’’), which declaresflatly that, ‘‘[c]ontrary to what was oncesuggested, the Constitution does not re-quire that an international agreement dealonly with ‘matters of international con-cern.’ ’’ 13 Third Restatement § 302 cmt.c; see id. § 303(1) (‘‘[T]he President, withthe advice and consent of the Senate, maymake any international agreement of theUnited States in the form of a treaty.’’).

Whatever the Treaty Power’s properbounds may be, however, we are confidentthat the Convention we are dealing withhere falls comfortably within them. TheConvention, after all, regulates the prolif-eration and use of chemical weapons. One

12. Although at least one commentator hasdisputed that shift, see Golove, supra, at 1281,1289 (stating that ‘‘commentators TTT havenot rejected subject matter limitations’’ to thetreaty power and arguing that, ‘‘[w]ere thePresident and Senate to make a treaty on asubject inappropriate for negotiation andagreement, and thus beyond the scope of thetreaty power, the treaty would be invalid un-der the Tenth Amendment’’), even then it hasbeen acknowledged that ‘‘the traditional sub-ject matter limitations on treaties are verygeneral, and with globalization, the mattersappropriate for treaties have expanded andwill continue to do so,’’ id. at 1291. Thatreality has been borne out by the kinds ofconventions now extant in the internationalcommunity. See Bradley, supra, at 397 n. 29(citing to, inter alia, the Convention on theRights of the Child, open for signature Nov.20, 1989, 28 I.L.M. 1456 (1989); the Conven-tion on the Elimination of All Forms of Dis-crimination Against Women, S. Exec. Rep.No. 103–38 (1994); and the InternationalCovenant on Economic, Social, and CulturalRights, open for signature Dec. 19, 1966, 6I.L.M. 360 (1967)). Considering the expand-ing subjects taken up in treaty-making andthe nebulous standards associated with anylingering subject matter limitation, see Go-love, supra, at 1090 (‘‘The implication is clear:

the President and Senate can make treatieson any subject appropriate for negotiation andagreement among states.’’ (emphasis added));Laurence H. Tribe, Taking Text and StructureSeriously: Reflections on Free–Form Methodin Constitutional Interpretation, 108 Harv.L.Rev. 1221, 1261 n. 133 (1995) (‘‘The TreatyPower is legitimate only for internationalagreements fairly related to foreign relations’’(emphasis added)), whether the subject mat-ter limitation has fully eroded is a seriousquestion. For now, however, it is enough tonote that, at least among certain commenta-tors, it is no longer viewed as a meaningfulrestraint on the Treaty Power. Cf. Henkin,supra, at 197 & n. 89 (citing the Third Re-statement for the proposition that a limitationon the Treaty Power to matters of internation-al concern ‘‘has now been authoritativelyabandoned’’).

13. It, evidently, is not alone in that view. See,e.g., Tribe, supra, at 1261 n. 133 (‘‘[E]stablish-ment of a joint, binational health care systemby a treaty followed by implementing legisla-tion would presumably be possibleTTTT’’);Henkin, supra, at 474 (‘‘[W]hat is essentially amatter of ‘domestic concern’ becomes a mat-ter of ‘international concern’ if nations do, infact, decide to bargain about it.’’).


need not be a student of modern warfareto have some appreciation for the devasta-tion chemical weapons can cause and thecorresponding impetus for internationalcollaboration to take steps against theiruse. Given its quintessentially interna-tional character, we conclude that the Con-vention is valid under any reasonable con-ception of the Treaty Power’s scope. Infact, as we discuss at greater length here-in, because the Convention relates to war,peace, and perhaps commerce,14 it fits atthe core of the Treaty Power. See infranote 18.

2. Interpreting Holland

Because Holland clearly instructs that‘‘there can be no dispute about the validityof [a] statute’’ that implements a validtreaty, 252 U.S. at 432, 40 S.Ct. 382, theconstitutionality of Bond’s prosecutionwould seem to turn on whether the Actgoes beyond what is necessary and properto carry the Convention into effect, or, inother words, whether the Act fails to ‘‘beara rational relationship to’’ the Convention,Lue, 134 F.3d at 84. According to Bond,however, only a simplistic reading of Hol-land could lead one to think that the Su-preme Court was saying that ‘‘Congress’spower to implement treaties is subject tono limit other than affirmative restrictionson government power like the FirstAmendment.’’ (Appellant’s Supp. ReplyBr. 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 takeat face value the Supreme Court’s state-ment that ‘‘[i]f the treaty is valid there canbe no dispute about the validity of thestatute TTT as a necessary and propermeans to execute the powers of the Gov-ernment.’’ 252 U.S. at 432, 40 S.Ct. 382.A plurality of the Supreme Court itselfapparently gave that passage the simplisticreading Bond denounces when it said, inReid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1L.Ed.2d 1148 (1957), that:

The Court [in Holland ] was concernedwith the Tenth Amendment which re-serves to the States or the people allpower not delegated to the NationalGovernment. To the extent that theUnited States can validly make treaties,the people and the States have delegat-ed their power to the National Govern-ment and the Tenth Amendment is nobarrier.

Id. at 18, 77 S.Ct. 1222.

It is true that Justice Holmes spokelater in Holland in language that implies abalancing of the national interest againstthe interest claimed by the State, see Hol-land, 252 U.S. at 435, 40 S.Ct. 382 (‘‘Herea national interest of very nearly the firstmagnitude is involved.’’), but that was inthe context of assessing the validity of theMigratory Bird Treaty itself, not the im-plementing statute. That the latter wasconstitutional in light of the validity of theformer seemed to the Supreme Court torequire no further comment at all.15

14. Because we conclude that the Act is validunder the Necessary and Proper Clause, weexpress no opinion as to the merits of theGovernment’s newly-discovered CommerceClause argument.

15. Bond recognizes that the Holland court‘‘treated the legislation and treaty as co-exten-sive.’’ (Appellant’s Supp. Br. at 23.) Herconclusion from that is that when a treaty andits implementing legislation are not coexten-

sive, the justification for enacting the legisla-tion under the Necessary and Proper clausecan collapse. We do not disagree; as noted,a treaty and treaty-implementing legislationmust be ‘‘rationally related.’’ Ferreira, 275F.3d at 1027. As we discuss at greater lengthinfra, however, the Act and the Conventionwith which we are dealing here are coexten-sive at least on the question of ‘‘use,’’ which isthe only point relevant to Bond’s as-appliedchallenge. See infra Part II.B.3.


That does not mean, of course, that theHolland court would have spoken in thesame unqualified terms had it foreseen thelate Twentieth Century’s changing claimsabout the limits of the Treaty Power, orhad it been faced with a treaty that trans-gressed the traditional subject matter limi-tation.16 See id. at 433, 40 S.Ct. 382 (‘‘Thecase before us must be considered in lightof our whole experience and not merely inthat of what was said a hundred yearsago.’’). It may well have chosen to saymore about how to assess the validity of atreaty, and hence of coextensive treaty-implementing legislation. Perhaps Hol-land ’s vague comment about ‘‘invisible ra-diation[s] from the general terms of theTenth Amendment,’’ id. at 434, 40 S.Ct.382, would have been given some furtherexplication. As we have previously de-scribed, when Holland was decided, and,more importantly, when the Founders cre-ated the Treaty Power, it was generallyunderstood that treaties should concernonly matters that were clearly ‘‘interna-tional’’ in character, matters which, in Hol-land ’s words, invoke a national interestthat ‘‘can be protected only by national

action in concert with that of another [sov-ereign nation].’’ Id. at 435, 40 S.Ct. 382.All the authors of The Federalist Papers,along with others from that era, consid-ered the Treaty Power to be a necessaryattribute of the central government for theimportant but limited purpose of permit-ting our ‘‘intercourse with foreign nations,’’The Virginia Debates, supra, at 514 (state-ment of James Madison), and thereby al-lowing for compacts ‘‘especially as [they]relate[ ] to war, peace, and commerce,’’The Federalist No. 64 (John Jay); seesupra Part II.B.1. It was not a generaland unlimited grant of power to the feder-al government.17

Because an implied subject matter limi-tation on the Treaty Power was a given atthe time Holland was written, it wasenough to answer the states’ rights ques-tion in that case by pointing out that theTenth Amendment only reserves thosepowers that are not delegated and that‘‘the power to make treaties is delegatedexpressly.’’ 252 U.S. at 432, 40 S.Ct. 382.Thus, Holland ’s statement that ‘‘there canbe no dispute about the validity’’ of astatute implementing a valid treaty, id., is

16. The treaty at issue in Holland involved asubject of traditional international concern.See 56 Cong. Rec. 7361 (1918) (legislativetestimony that the Migratory Bird Treaty Act‘‘is essential to the preservation of our cotton,grain, and timber crops, whilst the migratorygame birds contribute materially to our foodsupply. The bill may well be considered ameasure of importance as affecting the suc-cessful prosecution of the war in which weare now engaged’’). As the Holland courtnoted, ‘‘nothing in the Constitution TTT com-pel[led] the Government to sit by while a foodsupply [was] cut off and the protectors of ourforests and our crops [were] destroyed.’’ 252U.S. at 435, 40 S.Ct. 382. Consequently, thetreaty dealt with ‘‘a national interest of verynearly the first magnitude’’ that could ‘‘only[be furthered] by national action in concertwith that of another power.’’ Id. at 435, 40S.Ct. 382; see id. at 433, 40 S.Ct. 382 (statingthat the treaty dealt with a ‘‘matter[ ] of the

sharpest exigency’’ and that ‘‘the States indi-vidually [were] incompetent to act’’).

17. That the Founders understood Article II,§ 2 to be a limited grant of power is clear, asthe Tenth Amendment itself verifies. Theavailable evidence of their thinking is thatthey did not intend for treaties to become avehicle to usurp the general powers reservedto the states. Cf. United States v. Pink, 315U.S. 203, 230, 62 S.Ct. 552, 86 L.Ed. 796(1942) (‘‘It is of course true that even treatieswith foreign nations will be carefully con-strued so as not to derogate from the authori-ty and jurisdiction of the States of this nationunless clearly necessary to effectuate the na-tional policy.’’); Holmes, 39 U.S. at 569, 39U.S. 540 (‘‘The power to make treaties TTT

was designed to [be] TTT consistent with TTT

the distribution of powers between the gener-al and state governments.’’).


sensible in context and, in any event, bindsus. We do not discount the significance ofthe Supreme Court’s emphasis on the im-portant role that federalism plays in pre-

serving individual rights, Bond II, 131S.Ct. at 2364, and it may be that there ismore to say about the uncompromisinglanguage used in Holland than we are ableto say,18 but that very direct language

18. We pause to consider how, if Holland werenot so clear in its ‘‘valid treaty equal validimplementing legislation’’ holding, treatiesand implementing legislation might usefullybe reviewed in light of the apparently evolv-ing understanding of the Treaty Power thatwe have described. See supra Part II.B.1.The Founders deliberately drafted Article II,§ 2 without defining the limits of the TreatyPower because they decided its scope re-quired flexibility in the face of unknowablefuture events. Cf. The Virginia Debates, supra,at 514–15 (James Madison’s observation that‘‘it [is not] possible to enumerate all the casesin which such external regulations would benecessaryTTTT It is most safe, therefore, toleave it to be exercised as contingencies mayarise’’). We do not second guess the wisdomof their choice and acknowledge that anyattempt to precisely define a subject matterlimitation on the Treaty Power would involvepolitical judgments beyond our ken. Cf. Bak-er v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7L.Ed.2d 663 (1962) (stating that resolution ofissues ‘‘touching foreign relations’’ often‘‘turn on standards that defy judicial applica-tion, or involve the exercise of a discretiondemonstrably committed to’’ a coordinatebranch); Pink, 315 U.S. at 232, 62 S.Ct. 552(‘‘[T]he field which affects international rela-tions is ‘the one aspect of our governmentthat from the first has been most generallyconceded imperatively to demand broad na-tional authority’TTTT’’ (citation omitted));Lue, 134 F.3d at 83 (‘‘[I]t is not the provinceof the judiciary to impinge upon the Execu-tive’s prerogative in matters pertaining to for-eign affairs.’’).

Nevertheless, while the outer boundaries ofthe Treaty Power may be hard to delineate,we can safely say that certain kinds of treatiesfall within the core of that power, namelythose dealing with war, peace, foreign com-merce, and diplomacy directed to those ends.See The Federalist No. 45 (James Madison)(stating that the Treaty Power ‘‘will be exer-cised 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 importantone, especially as it relates to war, peace, and

commerce’’). As to treaties of such character,it is hard to argue with the reasoning inHolland that, because ‘‘the power to maketreaties is delegated expressly,’’ 252 U.S. at432, 40 S.Ct. 382, the Tenth Amendment hasnothing meaningful to say. However, just assome treaties may fall comfortably within thetraditionally understood bounds of the TreatyPower, some may be negotiated that willplainly fall outside that scope. If such a trea-ty were challenged, a court would be boundto take up an issue not present here, namelywhether and when a treaty has reached aconstitutional boundary, see Marbury v. Madi-son, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60(1803) (‘‘It is emphatically the province andduty of the judicial department to say whatthe law is.’’); cf. Baker, 369 U.S. at 211, 82S.Ct. 691 (observing that not ‘‘every case orcontroversy which touches foreign relationslies beyond judicial cognizance’’), recognizingthat a treaty falling outside the limits of theTreaty Power would be unconstitutional asultra vires, cf. Joseph Story, Commentaries onthe Constitution of the United States 339 (Mel-ville M. Bigelow, ed. 5th ed. 1994) (1891) (‘‘Atreaty to change the organization of the gov-ernment, or annihilate its sovereignty, tooverturn its republican form, or to deprive itof its constitutional powers, would be void.’’).The deliberately vague boundaries of theTreaty Power would probably relegate thatcourt to the unenviable position of saying itknew a violation when it saw one.

Before the outer limits of the treaty powerare reached, however, it may be that federal-ism does have some effect on a treaty’s consti-tutionality. While it is not our prerogative toignore Holland ’s rejection of federalism limi-tations upon the Treaty Power, the SupremeCourt could clarify whether principles of fed-eralism have any role in assessing an exerciseof the Treaty Power that goes beyond thetraditionally understood subject matter fortreaties. Holland itself indicates that ‘‘invisi-ble radiation[s] from the general terms of theTenth Amendment’’ may be pertinent in de-ciding whether there is any space betweenobviously valid treaties and obviously ultravires treaties and whether, in that space,some judicial review of treaties and their im-


demands from us a direct acknowledge-ment of its meaning, even if the result maybe viewed as simplistic. If there is nuancethere that has escaped us, it is for theSupreme Court to elucidate.

3. The Necessary and Proper Clause

[4] Thus, because the Convention fallscomfortably within the Treaty Power’s tra-ditional subject matter limitation, the Actis within the constitutional powers of thefederal government under the Necessaryand Proper Clause and the Treaty Power,unless it somehow goes beyond the Con-vention. Bond argues that it does.19

She says that the Act covers a range ofactivity not actually banned by the Con-vention and thus cannot be sustained bythe Necessary and Proper Clause.Whether that argument amounts to a fa-cial or an as-applied attack on the Act, seesupra note 5, it fails. We stated in Bond Ithat ‘‘Section 229 TTT closely adheres tothe language of the TTT Convention,’’ 581F.3d at 138, and so it does. True, as Bondnotes, the Convention bans persons fromusing, developing, acquiring, stockpiling, orretaining chemical weapons, 32 I.L.M. at804, while the Act makes it unlawful to‘‘receive, stockpile, retain, own, possess,use, or threaten to use’’ a chemical weap-on, 18 U.S.C. § 229(a)(1), but those differ-ences in wording do not prove that the Acthas materially expanded on the Conven-

tion. See United States v. Belfast, 611F.3d 783, 806 (11th Cir.2010) (‘‘[T]he exis-tence of slight variances between a treatyand its congressional implementing legisla-tion do not make the enactment unconsti-tutional; identicality is not required.’’).The meaning of the list in the formerseems rather to fairly encompass the latter(with the possible exception of the ‘‘threat-en to use’’ provision of the Act) and, if theAct goes beyond the Convention at all,does not do so in the ‘‘use’’ aspect at issuehere.

So while Bond’s prosecution seems aquestionable exercise of prosecutorial dis-cretion,20 and indeed appears to justify herassertion that this case ‘‘trivializes the con-cept of chemical weapons’’ (Appellant’sSupp. Br. at 53), the treaty that gave riseto it was implemented by sufficiently relat-ed legislation. See Comstock, 130 S.Ct. at1956 (‘‘[I]n determining whether the Nec-essary and Proper Clause grants Congressthe legislative authority to enact a particu-lar federal statute, we look to see whetherthe statute constitutes a means that isrationally related to the implementation ofa constitutionally enumerated power.’’);Lue, 134 F.3d at 84 (rejecting the argu-ment ‘‘that because the Hostage TakingConvention targets a specific aspect of in-ternational terrorism—hostage taking—the statute effectuating the Conventionmust deal narrowly with international ter-rorism or risk invalidity’’ as a ‘‘cramped’’

plementing legislation may be undertaken topreserve the federal structure of our govern-ment. The ‘‘invisible radiation[s]’’ imagery,252 U.S. at 433–34, 40 S.Ct. 382, is unusualbut, in light of current conceptions about thebreadth of the Treaty Power, it may well beworth taking seriously. Cf. Printz, 521 U.S. at921–22, 117 S.Ct. 2365 (stating that the con-cept of dual sovereignty was ‘‘one of the Con-stitution’s structural protections of liberty’’).

19. As Judge Rendell correctly points out inher concurrence, Bond’s emphasis is entirelymisplaced to the extent she may be contend-

ing that her prosecution violates the Neces-sary and Proper Clause because the UnitedStates did not have to prosecute her to com-ply with its obligations under the Convention.(See Rendell Concurrence Op. at 167 (‘‘Exam-ining the scope of Congress’s Necessary andProper Power by definition requires us toexamine the Act, not its enforcement.’’).)

20. The decision to use the Act—a statute de-signed to implement a chemical weaponstreaty—to deal with a jilted spouse’s revengeon her rival is, to be polite, a puzzling use ofthe federal government’s power.


view of Congressional authority, becausetreaty-implementing legislation must sim-ply ‘‘bear a rational relationship to a per-missible constitutional end’’).

In short, because the Convention per-tains to the proliferation and use of chemi-cal weapons, which are matters plainly re-lating to war and peace, we think it clearthat the Convention falls within the TreatyPower’s core. See supra note 18. Conse-quently, we cannot say that the Act dis-rupts the balance of power between thefederal government and the states, regard-less of how it has been applied here. SeeGonzales v. Raich, 545 U.S. 1, 23, 125 S.Ct.2195, 162 L.Ed.2d 1 (2005) (‘‘[W]here theclass of activities is regulated and thatclass is within the reach of federal power,the courts have no power to excise, astrivial, individual instances of the class.’’(citations and internal quotation marksomitted)); 21 Holland, 252 U.S. at 432, 40S.Ct. 382 (‘‘If the treaty is valid there canbe no dispute about the validity of the[implementing] statuteTTTT’’); cf. U.S.Const. art. VI, cl. 2 (‘‘[A]ll Treaties madeTTT shall be the supreme Law of theLand.’’).

III. Conclusion

For the foregoing reasons, we will af-firm the judgment of conviction.

RENDELL, Circuit Judge, concurring.

I fully agree with the Majority’s reason-ing and result. I write separately to castthe issue before us in a somewhat differentlight, by expanding upon two aspects ofthe Majority’s reasoning which, I believe,decide this case. As it crystallized beforeus at oral argument, Ms. Bond’s challengehas little to do with the validity of theConvention. Her problem lies with theAct. She contends that the structure offederal-state relations is such that the Actshould not apply to her actions, namely,conduct involving a domestic dispute thatcould be prosecuted under state law.1

But, as the Majority rightly concludes, theAct is a valid exercise of Congress’s Nec-essary and Proper Power. Moreover, nojurisprudential principle, grounded in fed-eralism or elsewhere, saves her from theAct’s reach.

I consider two questions raised by herargument: What is legally wrong with theAct, which reaches Ms. Bond’s conduct?;and, What is wrong with the Act’s applica-tion to Ms. Bond, given the structure offederal-state relations? The answer toboth is: Nothing.

As to the first question, nothing ‘‘wrong’’occurred at the moment Congress passedthe Act. As the Majority has thoroughlydiscussed, the Convention itself is valid—

21. Although we acknowledge that the Raichcourt’s admonition against excising a class ofactivities from a valid assertion of federalpower may have related to its status as aCommerce Clause case based on the aggrega-tion principle employed in that context, seeRichard H. Fallon, Jr., Fact and Fiction AboutFacial Challenges, 99 Cal. L.Rev. 915, 936(2011) (opining that Raich ‘‘can be read asrejecting the possibility of successful as-ap-plied challenges to assertions of legislativepower under the Commerce Clause’’), theprinciple would seem to hold with respect tofederalism challenges arising from treatieswithin the Treaty Power’s core. As we havealready observed, see supra note 18, it is hard

to argue with Holland ’s rejection of federal-ism as an applicable concept as far as suchtreaties are concerned.

1. As her counsel argued:

And it really inheres in the statute. It’snot that there’s anything wrong in the ab-stract with the United States ratifying thistreaty. That’s not where the problem is.

The problem is either at the moment theypassed the statute that necessarily went thisfar or at the point that it becomes appliedin this kind of situation.

(3d Cir. Argument at 13.)


indeed, Ms. Bond unequivocally concedesthat point. In turn, the Act, which imple-ments the Convention, is valid as an exer-cise of Congress’s Necessary and ProperPower. That is because the Necessaryand Proper Clause affords Congress ‘‘ ‘am-ple means’ ’’ to implement the Convention,and gives Congress the authority ‘‘to enactlaws that are ‘convenient, or useful’ or‘conducive’ TTT to the ‘beneficial exercise’ ’’of the federal government’s Treaty Power.United States v. Comstock, ––– U.S. ––––,130 S.Ct. 1949, 1956, 176 L.Ed.2d 878(2010) (quoting McCulloch v. Maryland, 17U.S. 316, 4 Wheat. 316, 408, 413, 418, 4L.Ed. 579 (1819)). There is no questionthat the Act is rationally related to theConvention; it faithfully tracks the lan-guage of the Convention. Enacting a stat-ute that essentially mirrors the terms ofan underlying treaty is plainly a meanswhich is ‘‘reasonably adapted to the attain-ment of a legitimate end’’—ensuring thatthe United States complies with our inter-national obligations under a valid treaty.Comstock, 130 S.Ct. at 1957 (internal quo-tation marks and citations omitted); seealso United States v. Lue, 134 F.3d 79, 84(2d Cir.1998) (upholding a statute imple-menting a treaty where ‘‘[t]he Act hereplainly bears a rational relationship to theConvention; indeed, it tracks the languageof the Convention in all material re-spects’’).

In examining the constitutionality ofCongress’s exercise of its Necessary andProper Power, we need not considerwhether the prosecution of Ms. Bond isnecessary and proper to complying withthe Convention, as she would have us do.In other words, she argues that no nation-state would submit that the United Stateshas failed to comply with its obligationsunder the Convention if the federal gov-ernment did not prosecute Ms. Bond underthe Act. But that is not the appropriatetest. Examining the scope of Congress’s

Necessary and Proper Power by definitionrequires us to examine the Act, not itsenforcement. To determine if the Act isnecessary and proper, we ask whether itbears a rational relationship to the Con-vention. See Comstock, 130 S.Ct. at 1956(‘‘[I]n determining whether the Necessaryand Proper Clause grants Congress thelegislative authority to enact a particularfederal statute, we look to see whether thestatute constitutes a means that is ration-ally related to the implementation of aconstitutionally enumerated power.’’). Ms.Bond’s actions fall plainly within the termsof the Act, and the Act bears a rationalrelationship to the Convention. So endsthe Necessary and Proper inquiry.

The foregoing conclusion is enough toaffirm Ms. Bond’s conviction. As the Ma-jority correctly reasons, Missouri v. Hol-land, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed.641 (1920), forecloses challenging a validstatute implementing a valid treaty onNecessary and Proper grounds or federal-ism grounds. See Maj. Op. at 163 – 65;Holland, 252 U.S. at 432, 40 S.Ct. 382 (‘‘Ifthe treaty is valid there can be no disputeabout the validity of the statute’’ under theNecessary and Proper Clause).

But even if Ms. Bond were able to asserta federalism challenge to her conviction,she proposes no principle of federalismthat would limit the federal government’sauthority to prosecute her under the Act.Thus, as to the second question, Ms. Bondargues that if the statute is applied to her,and, is thus read to ‘‘criminalize everymalicious use of poisoning,’’ then principlesof federalism are violated by disturbingthe division of power between the federalgovernment and the states. (3d Cir. Argu-ment at 15.) As appealing as the argu-ment sounds—that a federal statute shouldnot reach an essentially local offense likethis—there is in fact no principled reasonto limit the Act’s reach when her conduct


is squarely prohibited by it. The fact thatan otherwise constitutional federal statutemight criminalize conduct considered to belocal does not render that particular crimi-nalization unconstitutional. As the Su-preme Court explained in Gonzales v.Raich, when ‘‘the class of activities is regu-lated and that class is within the reach offederal power, the courts have no power toexcise, as trivial, individual instances of theclass.’’ 545 U.S. 1, 23, 125 S.Ct. 2195, 162L.Ed.2d 1 (2005) (internal quotation marksand citations omitted). The fact that theAct, which properly implements a validtreaty, reaches non-terrorist uses of chem-ical weapons leaves us powerless to excisesuch an individual instance. True, Raichinvolved Congress’s Commerce ClausePower. But the Majority is correct toapply its principle to this case, particularlyin light of the Supreme Court’s rejection,in Holland, of federalism as a basis tochallenge a statute implementing an other-wise valid treaty. See Maj. Op. at 166 n.21; Holland, 252 U.S. at 432, 40 S.Ct. 382.

Ms. Bond continues to urge otherwise,asking us to consider the ‘‘world where theSupreme Court recognizes that the TenthAmendment is primarily about protectingindividual liberty,’’ (3d Cir. Argument at74), and to find controlling here cases likeNew York v. United States, 505 U.S. 144,112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), andPrintz v. United States, 521 U.S. 898, 117S.Ct. 2365, 138 L.Ed.2d 914 (1997), inwhich the Supreme Court recognized thatsome acts of Congress, even if they areotherwise valid under an enumerated pow-er, can run afoul of the Tenth Amendment.But this case is not like New York orPrintz, in which Congress wrongfully com-mandeered states’ legislative processes

and public officials. Nothing in thosecases suggests a principle of federalismthat would apply to this case.

Moreover, it is not enough to urge, asMs. Bond does, that Pennsylvania law andauthorities are equally able to handle, andpunish, this conduct so that, from a feder-alism standpoint, we should leave the mat-ter to Pennsylvania. That view simplymisstates the law. We have a system ofdual sovereignty. Instances of over-lapping federal and state criminalization ofsimilar conduct abound. But Ms. Bondargues that here, unlike the case with oth-er federal crimes, no federal interest isbeing served by prosecuting every mali-cious use of a chemical. That argumentfails for two reasons. First, there existsnowhere in the law a rule requiring that astatute implementing a treaty contain anelement explicitly tying the statute to afederal interest so as to ensure that aparticular application of the statute is con-stitutional. Cf. United States v. Wilson, 73F.3d 675, 685 (7th Cir.1995) (reasoningthat a jurisdictional element is not consti-tutionally required in a federal criminalstatute enacted pursuant to Congress’sCommerce Clause authority). Second,even if we were to require that there be aclear federal interest, Ms. Bond incorrectlycharacterizes the federal interest that isrepresented by her prosecution as one inprosecuting every malicious use of a chem-ical. Rather, the federal interest served istwofold: combating the use and prolifera-tion of chemical weapons, and complyingwith the United States’ obligations under avalid treaty.2 See Chemical Weapons Con-vention, art. VII.1, 32 I.L.M. 800, 810(1993) (requiring each signatory nation to,

2. I agree with Ms. Bond that states sometimesalso bear some responsibility for ensuringcompliance with our treaty obligations. SeeMedellın v. Texas, 552 U.S. 491, 128 S.Ct.1346, 170 L.Ed.2d 190 (2008). But that fact

does not nullify Congress’s authority to passtreaty-implementing legislation so as to en-sure uniform, nationwide compliance withour international obligations, nor does it sug-gest that Congress lacks the power to do so.


‘‘in accordance with its constitutional pro-cesses, adopt the necessary measures toimplement its obligations under this Con-vention’’). Additionally, whether there is adistinction, and where that distinction lies,between combating the use and prolifera-tion of chemical weapons and prosecutingthe malicious use of a chemical, is exceed-ingly difficult to discern.

In sum, Congress passed the Act, whichis constitutionally sound legislation, to im-plement the Convention, a constitutionallysound treaty. Ms. Bond’s appeal generallyto federalism, rather than to a workableprinciple that would limit the federal gov-ernment’s authority to apply the Act toher, is to no avail.

The real culprits here are three. First,the fact pattern. No one would question aprosecution under the Act if the defendantwere a deranged person who scatteredpotassium dichromate and 10–chloro–10H–phenoxarsine, the chemicals which Ms.Bond used, on the seats of the New Yorksubway cars. While that defendant couldbe punished under state law, applying theAct there would not offend our sensibili-ties. The application, however, to this ‘‘do-mestic dispute,’’ somehow does.

Second, the ‘‘use’’ of chemical weaponsas prescribed in the Act has an admittedlybroad sweep. See Maj. Op. at 154 n. 7;Chemical Weapons Convention, art.VII.1(a), 32 I.L.M. at 810 (requiring eachsignatory nation to ‘‘[p]rohibit natural andlegal persons anywhere on its territory TTT

from undertaking any activity prohibitedTTT under this Convention, including en-acting penal legislation with respect tosuch activity’’). Because the Act tracksthe Convention, however, Congress had

the power to criminalize all such uses.Perhaps, in carrying out the United States’treaty obligations, Congress could havecreated a more expansive exception for‘‘peaceful purposes,’’ but it did not.

Lastly, the decision to prosecute is trou-bling. The judgment call to prosecute Ms.Bond under a chemical weapons statuterather than allowing state authorities toprocess the case is one that we question.But we see that every day in drug cases.Perhaps lured by the perception of easierconvictions and tougher sentences, prose-cutors opt to proceed federally. See Ste-ven D. Clymer, Unequal Justice: The Fed-eralization of Criminal Law, 70 S. Cal.L.Rev. 643, 668–75 (1997). There is no lawagainst this, or principle that we can callupon, to limit or regulate it.

While the Majority opinion explores ar-guments regarding the limits of the TreatyPower, I find Ms. Bond’s argument to bemuch more limited in scope, althoughequally unsupportable. I agree that weshould affirm the judgment of the DistrictCourt.

AMBRO, Circuit Judge, concurring.

I concur in the result reached by JudgeJordan’s thoughtful opinion. I write sepa-rately to urge the Supreme Court to pro-vide a clarifying explanation of its state-ment in Missouri v. Holland that ‘‘[i]f [a]treaty is valid there can be no disputeabout the validity of the statute [imple-menting that treaty] under Article 1, Sec-tion 8, as a necessary and proper means toexecute the powers of the Government.’’252 U.S. 416, 432, 40 S.Ct. 382, 64 L.Ed.641 (1920).1

1. As I noted in our Court’s previous opinionin this case, see United States v. Bond, 581F.3d 128, 135 (3d Cir.2009), rev’d in part by,Bond v. United States, ––– U.S. ––––, 131 S.Ct.2355, 180 L.Ed.2d 269 (2011), the scope and

persuasiveness of Holland has generatedmuch academic debate. See, e.g., NicholasQuinn Rosenkranz, Executing The Treaty Pow-er, 118 Harv. L.Rev. 1867 (2005); Edward T.Swaine, Does Federalism Constrain the Treaty


Absent that undertaking, a blank checkexists for the Federal Government to enactany laws that are rationally related to avalid treaty and that do not transgressaffirmative constitutional restrictions, likethe First Amendment. This acquirablepolice power, however, can run counter tothe fundamental principle that the Consti-tution delegates powers to the FederalGovernment that are ‘‘few and defined’’while the States retain powers that are‘‘numerous and indefinite.’’ The Federal-ist No. 45 (James Madison).

Since Holland, Congress has largely re-sisted testing the outer bounds of its trea-ty-implementing authority. See Peter J.Spiro, Resurrecting Missouri v. Holland,73 Mo. L.Rev. 1029 (2008). But if everthere were a statute that did test thoselimits, it would be Section 229. With itsshockingly broad definitions, Section 229federalizes purely local, run-of-the-millcriminal conduct. The statute is a trouble-some example of the Federal Govern-ment’s appetite for criminal lawmaking.2

Sweeping statutes like Section 229 are indeep tension with an important structuralfeature of our Government: ‘‘ ‘The Statespossess primary authority for defining andenforcing the criminal law.’ ’’ Brecht v.Abrahamson, 507 U.S. 619, 635, 113 S.Ct.1710, 123 L.Ed.2d 353 (1993) (quoting En-gle v. Isaac, 456 U.S. 107, 128, 102 S.Ct.1558, 71 L.Ed.2d 783 (1982)); see alsoPatterson v. New York, 432 U.S. 197, 201,97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (‘‘Itgoes without saying that preventing and

dealing with crime is much more the busi-ness of the States than it is of the FederalGovernmentTTTT’’).

I hope that the Supreme Court will soonflesh out ‘‘[t]he most important sentence inthe most important case about the consti-tutional law of foreign affairs,’’ NicholasQuinn Rosenkranz, Executing The TreatyPower, 118 Harv. L.Rev. 1867, 1868 (2005),and, doing so, clarify (indeed curtail) thecontours of federal power to enact lawsthat intrude on matters so local that nodrafter of the Convention contemplatedtheir inclusion in it.

,

John M. DEWEY; Patrick DeMartino;Patricia Romeo; Lynda Gallo; Ron-ald B. Marrans; Edward O. Griffin,on behalf of themselves and all otherssimilarly situated

v.

VOLKSWAGEN AKTIENGESELLS-CHAFT; Volkswagen BeteiligungsGesellschaft M.B.H.; VolkswagenGroup of America, Inc. (formerlyknown as Volkswagen of America,Inc.); Audi AG; Volkswagen Group of

Power?, 103 Colum. L.Rev. 403 (2003); CurtisA. Bradley, The Treaty Power and AmericanFederalism, 97 Mich. L.Rev. 390 (1998).

2. ‘‘[T]he federal criminal code now includesat least 4,450 crimes. Congress added anaverage of 56.5 crimes per year to the federalcode between 2000 and 2007 and has raisedthe total number of federal crimes by 40 per-cent since 1970. Moreover, the federal crimi-nal code has grown not just in size but incomplexity, making it difficult to both (1) de-

termine what statutes constitute crimes and(2) differentiate whether a single statute withdifferent acts listed within a section or sub-section includes more than a single crimeand, if so, how many.’’ John C. Eastman, TheOuter Bounds of Criminal Law: Will Mrs.Bond Topple Missouri v. Holland?, 2011 Cato.Sup.Ct. Rev. 185, 193 (2011) (internal foot-notes, quotation marks, and alterations omit-ted).

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