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The Supreme Court had the opportunity in Bond v. United States to tackle constitutional questions about the scope of the Treaty Power and the Necessary & Proper Clause, but the six-justice majority declined that invitation. So, in the end, Bond is a statutory interpretation case. Although lacking the drama of a major constitutional ruling, statutory interpretation is, as Justice Breyer termed it in the domestic preemption context, the “ordinary diet of the law” and the “true test” of the federalist principle (see Ernest Young’s discussion here). The same holds in foreign relations law, where federalism principles are given effect primarily through statutory interpretation, as in recent cases suchas Chamber of Commerce v. Whiting and Arizona v. United States. As a statutory interpretation case, Bond is especially notable in two ways: for using ordinary principles of statutory interpretation in a treaty implementation case and for the lack of interpretive deference afforded the Executive Branch. Both aspects of the case demonstrate broader trends in the Roberts Court’s approach to foreign relations cases. First, in critical respects the Court treated the Chemical Weapons Convention Implementation Act like any other statute. Most significantly, the Court applied a federalism-based clear statement rule to “insist on a clear indication” that Congress intended that statute to reach “purely local crimes” and thereby intrude on the police power of the States. Like the Chief Justice’s opinion for the Court in Whiting (holding that an Arizona business licensing statute was not preempted), his opinion in Bond treats the statutory interpretation question as business-as-usual, drawing on cases and doctrine interpreting statutes that lack any connection to foreign relations. But in other preemption cases, the Court has emphasized the primacy of the federal government in foreign relations and applied what Peter Spiro has termed an “exceptional, hair-trigger preemption standard,” instead of the presumption against preemption that the Court generally applies. Justice Kennedy’s opinion for the Court in Arizona, for example, is part of this tradition. It focuses on the exceptional aspects of foreign relations, especially the importance of federal control over immigration in light of the potential foreign policy consequences of removal decisions. The Chief Justice’s opinions in both Bond and in Whiting suggest, however, that under his leadership (discussed here), the Court is moving away from foreign affairs exceptionalism, at least in federalism-related statutory interpretation cases (see also Harlan Cohen’s analysis here). Second, although clear statement rules and presumptions are generally understood as mediating the relationship between Congress and the courts, they can also have the effect of limiting Executive Branch control over foreign relations cases. Bond is, of course, an example. Going forward, federalism values will not be protected by federal prosecutors on a case-by-case basis but instead by the Court’s own judgment of what constitutes a statutory ambiguity in light of federalism concerns protected by the clear statement rule. Moreover, in making that determination in Bond, the Court afforded no deference to the government’s interpretation of the implementing legislation. Indeed, in Bond the Court’s rejection of the government’s interpretation of the statute was strained, as Justice Scalia argued in his concurring opinion. As Jean Galbraith puts it, the “statutory text reads plainly in the government’s favor.” In both respects – diminishing case-by-case executive control and rejecting its interpretation of a statute – the Court continues its trend of de-Chevronizing foreign relations law. In Bond, as Bill Dodge has emphasized, much power is afforded to the political branches of the federal government as a whole, but another upshot of Bond is that interpretive authority has shifted from the Executive Branch to the Supreme Court. This effect of the clear statement rule in Bond is in this respect similar to the effect of statutory presumptions in other recent foreign relations cases. In both Morrison and Kiobel, the Court rejected the government’s argument that the presumption against extraterritoriality did not apply to particular statutes. (see analysis on pages 17-18 here). In those cases, too, the statutory presumptions also reduced Executive Branch control of cases going forward. The Executive Branch appeared to favor a broadly applicable statutory scheme, in which courts would defer to it on a case-by-case basis to avoid potential foreign policy difficulties. The presumption clarified for Congress how the courts would interpret its work, but it also diminished the interpretive deference potentially available to the Executive Branch. Statutory and treaty interpretation are likely to remain the everyday diet of foreign relations law. As Bond held, the background assumptions that inform such interpretation are based on constitutional structure and values, including federalism. Executive Branch discretion is another aspect of constitutional structure that can impact statutory and treaty interpretation, but its purchase appears to be waning – at least for now.
Ingrid Wuerth is the Helen Strong Curry Professor of International Law at Vanderbilt Law School, where she also directs the international legal studies program. She is a leading scholar of foreign affairs, public international law and international litigation. She serves on the State Department’s Advisory Committee on Public International Law, she is a Reporter on the American Law Institute’s Restatement (Fourth) on U.S. Foreign Relations Law, and she is on the editorial board of the American Journal of International Law. She has won Fulbright and Alexander von Humboldt awards permitting her to spend substantial time in Germany and she is an elected member of the German Society of International Law.
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