2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-3-2012

USA v. Carol Bond

Precedential or Non-Precedential: Precedential

Docket No. 08-2677

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-2677

_____________

UNITED STATES OF AMERICA

v.

CAROL ANNE BOND,

Appellant

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 07-cr-528)

District Judge: Honorable James T. Giles

_______________

Argued

November 16, 2011

On Remand From the United States Supreme Court

Before: RENDELL, AMBRO, and JORDAN, Circuit 

Judges.

(Filed: May 3, 2012)

_______________
2

Paul D. Clement [ARGUED]

Bancroft

1919 M Street, NW - #470

Washington, DC 20036

Adam M. Conrad

King & Spalding

100 N. Tryon Street - #3900

Charlotte, NC 28202

Robert E. Goldman

P.O. Box 239

Fountainville, PA 18923

Ashley C. Parrish

King & Spalding

1700 Pennsylvania Avenue, NW - #200

Washington, DC 20006

Eric E. Reed

Fox Rothschild

2000 Market Street – 20th Fl.

Philadelphia, PA 19103

Counsel for Appellant

Paul G. Shapiro [ARGUED]

Office of United States Attorney

615 Chestnut Street - #1250

Philadelphia, PA 19106

Counsel for Appellee

_________
3

_______________

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 case to us to consider her 

constitutional argument.

In her merits argument, Bond urges us to set aside as 

inapplicable the landmark decision Missouri v. Holland, 252 

U.S. 416 (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 
4

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, we will affirm 

Bond‟s conviction. 

I. Factual Background and Procedural History

A. Facts

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, 131 S. Ct. 2355, 2360-61 (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 Hanes 

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 Hanes‟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 
5

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,1but it has 

been consistent in maintaining that the Act is a constitutional 

 

1

The government has, at different stages of this case, 

been willing to jettison one legal position and adopt a 

different one, as seemed convenient. Before the District 

Court, it expressly disclaimed the Commerce Clause as a 

basis for Congress‟s power to approve the Act. (See E.D. Pa. 

No. 07-cr-528, doc. no. 30, at 7 (“Title 18, United States 

Code, Section 229 was not enacted under the interstate 

commerce authority but under Congress‟s authority to 

implement treaties.”).) The government still maintained that 

position the first time it appeared before us, relying only on 

the Necessary and Proper Clause in support of the Act‟s 

constitutionality. (See Appellee‟s Initial Br. at 20-32.) Once 

before the Supreme Court, however, the government decided 

that this is really a Commerce Clause case and that the 

position it had pressed before us is secondary. That change 

was in addition to abandoning the position on standing that it

had previously taken. See infra note 2. 
6

exercise of Congress‟s authority to enact treaty-implementing 

legislation under the Necessary and Proper Clause. The 

District Court accepted that argument and denied Bond‟s 

motion to dismiss. 

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.2 Bond I, 581 F.3d at 139. The 

Supreme Court granted certiorari to address the question of 

“[w]hether a criminal defendant convicted under a federal 

statute has standing to challenge her conviction on grounds 

that, as applied to her, the statute is beyond the federal 

 

2 We determined that Bond lacked standing to pursue 

her Tenth Amendment challenge after requesting 

supplemental briefing on the question of whether she “ha[d] 

standing to assert that 18 U.S.C. § 229 encroaches on state 

sovereignty in violation of the Tenth Amendment to the 

United States Constitution absent the involvement of a state 

or its instrumentalities[.]” (United States v. Bond, No. 08-

2677, 08/14/2009 Letter to Counsel.) The government 

responded that Bond lacked such standing under Tennessee 

Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 

118 (1939), which held that “appellants, absent the states or 

their officers, have no standing ... to raise any question under 

the [Tenth] [A]mendment,” id. at 144. (United States v. 

Bond, No. 08-2677, 08/20/2009 Letter from Appellee.) 

Before the Supreme Court, however, the government reversed 

course and argued that Bond did have standing to make a 

Tenth Amendment challenge. See Bond II, 131 S. Ct. at 2361 

(describing the government‟s initial “position that Bond did 

not have standing” and the changed position before the 

Supreme Court that “Bond does have standing”).
7

government‟s enumerated powers and inconsistent with the 

Tenth Amendment.” Petition for Writ of Certiorari, Bond v. 

United States (No. 09-1227), 2010 WL 1506717 at *i; see

Bond v. United States, 131 S. Ct. 455 (2010). Ultimately, the 

Court concluded that Bond “does have standing to challenge 

the federal statute.” Bond II, 131 S. Ct. at 2360. The case 

was remanded to us to address the “issue of the statute‟s 

validity” which, as the Court instructed, “turns in part on 

whether the law can be deemed „necessary and proper for 

carrying into Execution‟ the President‟s Article II, § 2 Treaty 

Power.” Id. at 2367 (quoting U.S. Const. art. I, § 8, cl. 18).

II. Discussion3

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.”4252 U.S. at 432. Implicit in 

 

3

The District Court had jurisdiction under 18 U.S.C. 

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 

U.S.C. § 3742, and review de novo a challenge to the 

constitutionality of a criminal statute, Bond I, 581 F.3d at 

133.

4

The referenced section of the Constitution is the 

Necessary and Proper Clause, which provides Congress with 

the power “[t]o make all Laws which shall be necessary and 

proper for carrying into Execution the foregoing Powers, and 

all other Powers vested by this Constitution in the 

Government of the United States, or in any Department or 

Officer thereof.” U.S. Const. art. I, § 8, cl. 18. 
8

that statement is the premise that principles of federalism will

ordinarily impose no limitation on Congress‟s ability to write 

laws supporting treaties, because the only relevant question is 

whether the underlying treaty is valid. See id. at 432, 434 

(stating that “it is not enough to refer to the Tenth 

Amendment, reserving the powers not delegated to the United 

States” because the Treaty Power is delegated, but 

acknowledging the possibility that there may sometimes be

“invisible radiation[s] from the general terms of the Tenth 

Amendment”). Reasoning that a reading of Holland that

categorically rejects federalism as a check on Congress‟s 

treaty-implementing authority is of questionable 

constitutional validity, Bond asks us to invalidate her 

conviction because the Act is unconstitutional as applied to

her.

5

 She says that to hold otherwise would offend the 

 

5

It appears that Bond has abandoned her facial 

challenge to the Act. Her argument, both in her supplemental 

briefing before us and at oral argument, is articulated as an 

as-applied challenge. (See, e.g., Appellant‟s Supp. Br. at 26 

(“Bond is raising a ... limited and narrowly focused asapplied challenge. She contends that, whatever its validity 

more generally, the statute cannot be constitutionally applied 

to her in the circumstances of this case.”); Transcript of Oral 

Argument at 11-13, United States v. Bond, No. 08-2677 (“3d 

Cir. Argument”).) And, Bond‟s counsel commented at oral 

argument that he was “trying ... [to be] respectful of the 

Supreme Court‟s jurisprudence that says you don‟t lightly 

bring a facial challenge” to a statute. (3d Cir. Argument at 

62.) Counsel framed his argument as being that “the 

principle[] that [the statute has] offended is that if you apply it 

so broadly that it criminalizes every malicious use of 

poisoning, then you‟ve overridden the structural limitations 
9

Constitution‟s balance of power between state and federal 

authority by “intrud[ing] ... on the traditional state 

prerogative to punish assaults.” (Appellant‟s Supp. Br. at 47.) 

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.

6

 

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, 

 

on the government and the division of power between the 

federal government and the states.” (Id. at 15-16.) We thus 

take it as granted that, although some of her past arguments 

move into the territory of a facial challenge, Bond is not now

saying that Congress was without power to pass the Act but 

is, instead, arguing that Congress could not properly pass it if 

the Act‟s language is interpreted 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 argument 

necessarily presumes a serious constitutional problem, 

notwithstanding Holland. See Edward J. DeBartolo Corp. v. 

Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 

568, 575 (1988) (stating the constitutional avoidance inquiry 

should be undertaken in the face of “serious constitutional 

problems”). Regardless of Holland‟s breadth, we accept 

Bond‟s suggestion that it is prudent to begin our analysis with 

the avoidance doctrine.
10

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 harm to humans or animals,” id. 

§ 229F(8)(A). Congress did put some limit on the sweep of 

the Act by excluding from the definition of “chemical 

weapon” any chemicals and precursors “intended for a 

purpose not prohibited under this chapter as long as the type 

and quantity is consistent with such a purpose.” Id.

§ 229F(1)(A). The phrase “purpose not prohibited under this 

chapter,” is then defined, in part, as “[a]ny peaceful purpose 

related to an industrial, agricultural, research, medical, or 

pharmaceutical activity or other activity.” Id. § 229F(7)(A). 

It is that “peaceful purpose” language that Bond urges us to 

take as our interpretive lodestar. 

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 
11

did. (Appellant‟s Supp. Br. at 40.) That interpretation is

tempting, in light of the challenges inherent in the Act‟s 

remarkably broad language,

7

but, as we held the first time we 

had this case, Bond‟s behavior “clearly constituted unlawful 

possession and use of a chemical weapon under § 229.” Bond

I, 581 F.3d at 139. 

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 

 

7

The Act‟s breadth is certainly striking, seeing as it

turns each kitchen cupboard and cleaning cabinet in America 

into a potential chemical weapons cache. Cf. Transcript of 

Oral Argument at 29, Bond v. United States, 131 S. Ct. 2355 

(2011) (No. 09-1227) (Justice Alito‟s statement during oral 

argument that “pouring a bottle of vinegar in [a] friend‟s 

goldfish bowl” could constitute the use of a chemical weapon

under the Act and expose a person to years in federal prison). 

We observed as much the last time this case was before us,

noting, as Bond had herself acknowledged at the time, that 

the Act‟s wide net was cast “for obvious reasons.” Bond I, 

581 F.3d at 139. Ultimately, however, we concluded that the 

Act was not unconstitutionally overbroad. See id. (observing 

that the Act is “certainly broad,” but not unconstitutionally 

so). Bond did not challenge that determination, see Petition 

for Writ of Certiorari, Bond v. United States (No. 09-1227), 

2010 WL 1506717 at *i, and it remains undisturbed. That the 

Act is not unconstitutionally overbroad, of course, does not 

preclude Bond from arguing, as she now does, that the Act 

offends the Constitution‟s division of power between the 

federal government and the states to the extent it is used to 

make her conduct a federal crime.
12

“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 (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 an industrial, agricultural, research, 

medical, or pharmaceutical activity or other activity.” 18 

U.S.C. § 229F(7)(A) (emphasis added). Bond‟s attacks on 

Haynes – even if non-warlike – were certainly not “related to 

an industrial, agricultural, research, medical, or 

pharmaceutical activity.” Id. Nor can her use of chemicals

be said to be a “peaceful purpose[] ... related to an ... other 

activity,” because regarding her assaultive behavior as such

would improperly expand § 229F(7)(A)‟s scope. See, e.g.,

Gooch v. United States, 297 U.S. 124, 129 (1936) (“The rule 

of ejusdem generis ... [o]rdinarily ... limits general terms 

which follow specific ones to matters similar to those 

specified.”).

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, 130 S. Ct. 1577, 1591 (2010) (stating that only 
13

“„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 

(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 (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 (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 (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 
14

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”).8

 

8 We do not need to determine whether the Tenth 

Amendment is a tautology reflecting the structural limitations 

on federal power embodied in the system of dual sovereignty 

established by the Constitution, or, as has sometimes been 

suggested, serves as an independent check on federal power. 

See New York, 505 U.S. at 156, 160 (describing the argument 

that, even when Congress has the authority to regulate, “the 

Tenth Amendment limits the power of Congress to regulate in 

the way it has chosen,” though noting that its actual limit “is 

not derived from the text” of the Tenth Amendment as the 

Tenth Amendment is “essentially a tautology”); Nat’l League 

of Cities v. Usery, 426 U.S. 833, 842 (1976) (recognizing a 

“limit[] upon the power of Congress to override state 

sovereignty, even when exercising its otherwise plenary 

powers ... which are conferred by Art. I of the Constitution” 

and that “an express declaration of this limitation is found in 

the Tenth Amendment”), overruled by Garcia v. San Antonio 

Metro. Transit Auth., 469 U.S. 528 (1985); cf. Gerard N. 

Magliocca, A New Approach to Congressional Power: 

Revisiting the Legal Tender Cases, 95 Geo. L.J. 119, 125 n.30 

(2006) (suggesting the Tenth Amendment‟s “independent 

force” is limited to “[l]aws that regulate states qua states”). 

Regardless of whether the Tenth Amendment has 

“independent force of its own,” Bond II, 131 S. Ct. at 2367, 

we understand our constitutional inquiry to turn on whether 

principles of federalism are violated by the Act, in light of the 

Constitution‟s delegation to the President of the power “to 
15

Endeavoring to discover what impact the Tenth 

Amendment may have on treaty-implementing legislation

immediately leads, as we have indicated, to the Supreme 

Court‟s decision in Missouri v. Holland. The statute at issue

in that case, the Migratory Bird Treaty Act, 16 U.S.C. § 703,

implemented a treaty between the United States and Great 

Britain that banned the hunting of migratory birds during 

certain seasons. Holland, 252 U.S. at 431. The State of 

Missouri brought suit against a U.S. game warden, arguing 

that the statute unconstitutionally interfered with the rights

reserved to Missouri by the Tenth Amendment because 

Missouri was free to do what it wished with the birds while 

they were within its borders. Id. at 431-32. The Supreme 

Court, speaking through Justice Holmes, rejected that 

argument, reasoning that “it is not enough to refer to the 

Tenth Amendment, reserving the powers not delegated to the 

United States, because by Article 2, Section 2, the power to 

make treaties is delegated expressly.” Id. at 432.

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. While 

 

make Treaties, provided two thirds of the Senators present 

concur,” U.S. Const. art. II, § 2, cl. 2, and to Congress of the 

power to enact “all Laws which shall be necessary and proper 

for carrying into Execution ... all other Powers vested by 

th[e] Constitution in the Government of the United States, or 

in any Department or Officer thereof,” U.S. Const. art. I, § 8, 

cl. 18. 
16

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. 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. 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 

further discussion that, because the treaty was valid, so was 

the implementing statute. See id. at 435 (“We see nothing in 

the Constitution that compels the Government to sit by while 

a food supply is cut off and the protectors of our forests and 

our crops are destroyed.”).

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.

9

 See United States v. Lara, 541 U.S. 193, 201 

 

9

It has been argued that Holland incorrectly permits 

“treaties ... [to] expand the legislative power of Congress.” 

Nicholas Quinn Rosenkranz, Executing The Treaty Power, 

118 Harv. L. Rev. 1867, 1875 (2005). The Cato Institute has 
17

(2004) (“[A]s Justice Holmes pointed out [in Holland], 

treaties made pursuant to [the Treaty Power] can authorize 

Congress to deal with „matters‟ with which otherwise 

„Congress could not deal.‟” (quoting Holland, 252 U.S. at 

433)). The legislation must, of course, meet the Necessary 

and Proper Clause‟s general requirement that legislation 

implemented under that Clause be “rationally related to the 

implementation of a constitutionally enumerated power.” 

United States v. Comstock, 130 S. Ct. 1949, 1956 (2010); see 

also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 

(1819) (“[A]ll means which are appropriate, which are plainly 

adapted to that end, which are not prohibited, but consist with 

the letter and spirit of the constitution, are constitutional.”). 

 

submitted an amicus brief taking that position, arguing 

against Holland‟s “impl[ication] that if a treaty commits the 

United States to enact some legislation, then Congress 

automatically obtains the power to enact that legislation, even 

if it would lack such power in the absence of the treaty.” 

(Amicus Br. at 6.) Amicus argues that Congress‟s authority 

to act in connection with the Treaty Power only permits it to 

enact those laws that are necessary and proper to permit the 

President to make treaties – not to implement treaties once 

they are agreed upon. (See id. (arguing the President cannot 

increase Congress‟s power under the Necessary and Proper 

Clause by entering into a treaty).) Under that view, Congress 

could, for example, legislate to provide funding for an office 

of treaty-making, but could not have implemented the broadly 

worded Convention involved here. (See id. at 8 (“[T]his 

power would ... embrace any ... laws necessary and proper to 

ensuring the wise use of the power to enter treaties.”).) 

Holland remains binding precedent, however, and forecloses 

this line of reasoning.
18

In the treaty context, that requirement has been understood to 

mean that a treaty and its implementing legislation must 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 rational relationship to” a 

valid treaty, United States v. Lue, 134 F.3d 79, 84 (2d Cir. 

1998), the arguable consequence of Holland is that treaties 

and associated legislation are simply not subject to Tenth 

Amendment scrutiny, no matter how far into the realm of 

states‟ rights the President and Congress may choose to 

venture. See Curtis A. Bradley, The Treaty Power and 

American Federalism, 97 Mich. L. Rev. 390, 395 (1998) 

(taking exception with Holland to the extent it can be read to 

say that “the treaty power is immune from federalism 

restrictions because that power has been exclusively 

delegated to the federal government”); Erwin Chemerinsky, 

Constitutional Law: Principles and Policies 287 (4th ed. 

2011) (stating that the Holland court “rejected the claim that 

state sovereignty and the Tenth Amendment limit the scope of 

the treaty power”); Louis Henkin, Foreign Affairs and the 

U.S. Constitution 191 (2nd ed. 1996) (“What [Holland] said, 

simply, was that the Constitution delegated powers to various 

branches of the federal government, not only to Congress; the 

Treaty Power was delegated to the federal treaty-makers, a 

delegation additional to and independent of the delegations to 

Congress. Since the Treaty Power was delegated to the 

federal government, whatever is within its scope is not 

reserved to the states: the Tenth Amendment is not material.” 

(internal footnote omitted)). But see David M. Golove, 

Treaty-Making and the Nation: The Historical Foundations of 

the Nationalist Conception of the Treaty Power, 98 Mich. L. 

Rev. 1075, 1085 (2000) (noting that “treaties are not immune 

from federalism limitations, and nothing in [Holland] 
19

suggests the contrary,” but acknowledging that “it is difficult 

to imagine realistic scenarios in which treaty stipulations 

would violate [the applicable] limitations”).

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.10 

 

10 The Supreme Court has focused renewed attention 

on federalism over the last two decades. Although many 

earlier cases reflect the importance of the our Constitution‟s 

basic provision for dual sovereigns, see, e.g., Gregory v. 

Ashcroft, 501 U.S. 452, 460 (1991) (observing that the rule 

requiring Congress to speak clearly in order to preempt state 

law “acknowledg[es] that the States retain substantial 
20

 

sovereign powers under our constitutional scheme”); South 

Dakota v. Dole, 483 U.S. 203, 211-12 (1987) (recognizing 

that Congress may not coerce the states when exercising its 

power to spend), more recent cases have been particularly 

pointed in describing the role federalism principles should 

play in analyzing assertions of federal authority. That trend 

began at least as early as the Court‟s decision in New York v. 

United States, 505 U.S. 144 (1992), which held that the 

federal government could not “commandeer[] the legislative 

processes of the States.” Id. at 176 (citation and internal 

quotation marks omitted). After New York, the Court struck 

down legislation criminalizing local conduct in United States 

v. Lopez, 514 U.S. 549 (1995), as beyond the Commerce 

Clause Power. In doing so the Court recognized the 

importance of the states‟ authority to “defin[e] and enforc[e] 

the criminal law,” and noted that, “[w]hen Congress 

criminalizes conduct already denounced as criminal by the 

States, it effects a change in the sensitive relation between 

federal and state criminal jurisdiction.” Id. at 561 n.3 

(citations and internal quotation marks omitted). In Printz v. 

United States, 521 U.S. 898, 919 (1997), the Court likewise 

considered principles of federalism in striking down 

legislation that required state police to perform background 

checks on potential gun owners. See id. at 19 (noting the 

establishment of dual sovereignties was “reflected throughout 

the Constitution‟s text,” and had vested in the states “„a 

residuary and inviolable sovereignty.‟” (quoting The 

Federalist No. 39 (James Madison))). Similarly, in United 

States v. Morrison, 529 U.S. 598 (2000), the Court struck 

down legislation making it a federal offense to commit a 

crime of violence motivated by gender, observing that “[t]he 

Constitution requires a distinction between what is truly 
21

Those concerns notwithstanding, Bond does not argue 

that the Convention itself is constitutionally infirm. On the 

contrary, she admits “that a treaty restricting chemical 

weapons is a „proper subject[] of negotiations between our 

government and other nations.‟” (Id. at 4-5 (alteration in 

original) (citation omitted)). Accordingly, we need not

tackle, head on, whether an arguably invalid treaty has led to 

legislation encroaching on matters traditionally left to the 

police powers of the states. Nevertheless, resolving the 

argument Bond does lodge against her prosecution requires at 

least some consideration of whether the Convention is, in 

fact, valid. See Holland, 252 U.S. at 432 (“If the treaty is 

valid there can be no dispute about the validity of the statute 

... .” (emphasis added)). We therefore turn briefly to whether 

the Convention falls within the Treaty Power‟s appropriate 

scope, bearing in mind that Bond seems to accept that it does.

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 

 

national and what is truly local,” id. at 617-18, and that there 

was “no better example of the police power, which the 

Founders denied the National Government and reposed in the 

States, than the suppression of violent crime and vindication 

of its victims,” id. at 618. 
22

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.11 3 The Debates in 

 

11 Other Founders shared Madison‟s understanding that 

the Treaty Power would be limited to matters involving 

foreign affairs. Cf. The Federalist No. 64 (John Jay) (noting 

that the “power of making treaties is an important one, 

especially as it relates to war, peace, and commerce”); The 

Federalist No. 75 (Alexander Hamilton) (stating that treaties 

“[were] not rules prescribed by the sovereign to the subject, 

but agreements between sovereign and sovereign”). 

Notwithstanding the Founders‟ view of the Treaty Power‟s 

inherent limits, there is, again, nothing in the Constitution‟s 

text explicitly confining that power. The basis for that 

omission is perhaps best explained by Madison, who, like 

others, recognized the need for flexibility with respect to the 

Treaty Power and cautioned against expressly defining its 

scope:

I do not think it possible to enumerate all the 
23

The Several State Conventions on the Adoption of the 

Constitution 514-15 (Jonathan Elliot ed., 2d ed. 1941) (“The 

Virginia Debates”); 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”). As Madison later explained, if 

there was

no limitation on the Treaty-making power ..., it 

might admit of a doubt whether the United 

States might not be enabled to do those things 

by Treaty which are forbidden to be done by 

Congress ...; but no such consequence can 

follow, for it is a sound rule of construction, 

that what is forbidden to be done by all the 

branches of Government conjointly, cannot be 

done by one or more of them separately.

5 Annals of Congress 671 (1796) (emphasis added). 

 

cases in which such external regulations would 

be necessary. Would it be right to define all the 

cases in which Congress could exercise this 

authority[?] The definition might, and probably 

would, be defective. They might be restrained, 

by such a definition, from exercising the 

authority where it would be essential to the 

interest and safety of the community. It is most 

safe, therefore, to leave it to be exercised as 

contingencies may arise.

The Virginia Debates, supra, at 514-15. 
24

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 (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 (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 

(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 (1825) (treaty between 

the United States and France that allowed citizens of either 
25

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 (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 (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 of negotiation between our government 

and other nations.”), and that the purpose of limiting the 

Treaty Power to matters which “in the ordinary intercourse of 

nations had usually been made subjects of negotiation and 

treaty” was to ensure that treaties were “consistent with ... 

the distribution of powers between the general and state 

governments,” Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 569 

(1840).

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.12 See

 

12 Although at least one commentator has disputed that 

shift, see Golove, supra, at 1281, 1289 (stating that 

“commentators ... have not rejected subject matter 

limitations” to the treaty power and arguing that, “[w]ere the 

President and Senate to make a treaty on a subject 

inappropriate for negotiation and agreement, and thus beyond 

the scope of the treaty power, the treaty would be invalid 

under the Tenth Amendment”), even then it has been
26

Bradley, supra, at 433 (describing the “rejection of a subject 

 

acknowledged that “the traditional subject matter limitations 

on treaties are very general, and with globalization, the 

matters appropriate for treaties have expanded and will 

continue to do so,” id. at 1291. That reality has been borne 

out by the kinds of conventions now extant in the 

international community. See Bradley, supra, at 397 n.29 

(citing to, inter alia, the Convention on the Rights of the 

Child, open for signature Nov. 20, 1989, 28 I.L.M. 1456 

(1989); the Convention on the Elimination of All Forms of 

Discrimination Against Women, S. Exec. Rep. No. 103-38 

(1994); and the International Covenant on Economic, Social, 

and Cultural Rights, open for signature Dec. 19, 1966, 6 

I.L.M. 360 (1967)). Considering the expanding subjects 

taken up in treaty-making and the nebulous standards 

associated with any lingering subject matter limitation, see 

Golove, supra, at 1090 (“The implication is clear: the 

President and Senate can make treaties on any subject 

appropriate for negotiation and agreement among states.” 

(emphasis added)); Laurence H. Tribe, Taking Text and 

Structure Seriously: Reflections on Free-Form Method in 

Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1261 

n.133 (1995) (“The Treaty Power is legitimate only for 

international agreements fairly related to foreign relations”

(emphasis added)), whether the subject matter limitation has 

fully eroded is a serious question. For now, however, it is 

enough to note that, at least among certain commentators, it is 

no longer viewed as a meaningful restraint on the Treaty 

Power. Cf. Henkin, supra, at 197 & n.89 (citing the Third 

Restatement for the proposition that a limitation on the Treaty 

Power to matters of international concern “has now been 

authoritatively abandoned”).
27

matter limitation on the treaty power” as “the accepted 

view”). That change is reflected in the Restatement (Third) 

of Foreign Relations Law of the United States (1987) (the 

“Third Restatement”), which declares flatly that,“[c]ontrary 

to what was once suggested, the Constitution does not require 

that an international agreement deal only with „matters of 

international concern.‟”13 Third Restatement § 302 cmt. c; 

see id. § 303(1) (“[T]he President, with the advice and 

consent of the Senate, may make any international agreement 

of the United States in the form of a treaty.”). 

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 need not be a student of modern warfare to 

have some appreciation for the devastation chemical weapons 

can cause and the corresponding impetus for international 

collaboration to take steps against their use. Given its 

quintessentially international character, we conclude that the 

Convention is valid under any reasonable conception of the 

Treaty Power‟s scope. In fact, as we discuss at greater length 

herein, because the Convention relates to war, peace, and 

 

13 It, evidently, is not alone in that view. See, e.g., 

Tribe, supra, at 1261 n.133 (“[E]stablishment of a joint, 

binational health care system by a treaty followed by 

implementing legislation would presumably be possible ... 

.”); Henkin, supra, at 474 (“[W]hat is essentially a matter of 

„domestic concern‟ becomes a matter of „international 

concern‟ if nations do, in fact, decide to bargain about it.”).
28

perhaps commerce,14 it fits at the core of the Treaty Power. 

See infra note 18.

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, 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. 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 (1957), that:

 

14 Because we conclude that the Act is valid under the 

Necessary and Proper Clause, we express no opinion as to the 

merits of the Government‟s newly-discovered Commerce 

Clause argument.
29

The Court [in Holland] was concerned with the 

Tenth Amendment which reserves to the States 

or the people all power not delegated to the 

National Government. To the extent that the 

United States can validly make treaties, the 

people and the States have delegated their 

power to the National Government and the 

Tenth Amendment is no barrier.

Id. at 18.

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 (“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.15 

 

15 Bond recognizes that the Holland court “treated the 

legislation and treaty as co-extensive.” (Appellant‟s Supp. 

Br. at 23.) Her conclusion from that is that when a treaty and 

its implementing legislation are not coextensive, the 

justification for enacting the legislation under the Necessary 

and Proper clause can collapse. We do not disagree; as noted, 

a treaty and treaty-implementing legislation must be 

“rationally related.” Ferreira, 275 F.3d at 1027. As we 

discuss at greater length infra, however, the Act and the 

Convention with which we are dealing here are coextensive at 

least on the question of “use,” which is the only point relevant 

to Bond‟s as-applied challenge. See infra Part II.B.3.
30

That does not mean, of course, that the Holland court

would have spoken in the same unqualified terms had it 

foreseen the late Twentieth Century‟s changing claims about 

the limits of the Treaty Power, or had it been faced with a 

treaty that transgressed the traditional subject matter 

limitation.

16

 See id. at 433 (“The case before us must be 

considered in light of our whole experience and not merely in 

that of what was said a hundred years ago.”). It may well 

have chosen to say more about how to assess the validity of a 

treaty, and hence of coextensive treaty-implementing 

legislation. Perhaps Holland‟s vague comment about 

“invisible radiation[s] from the general terms of the Tenth 

Amendment,” id. at 434, would have been given some further 

 

16 The treaty at issue in Holland involved a subject of 

traditional international concern. See 56 Cong. Rec. 7361 

(1918) (legislative testimony that the Migratory Bird Treaty 

Act “is essential to the preservation of our cotton, grain, and 

timber crops, whilst the migratory game birds contribute 

materially to our food supply. The bill may well be 

considered a measure of importance as affecting the 

successful prosecution of the war in which we are now 

engaged”). As the Holland court noted, “nothing in the 

Constitution ... compel[led] the Government to sit by while a 

food supply [was] cut off and the protectors of our forests and 

our crops [were] destroyed.” 252 U.S. at 435. Consequently, 

the treaty dealt with “a national interest of very nearly the 

first magnitude” that could “only [be furthered] by national 

action in concert with that of another power.” Id. at 435; see 

id. at 433 (stating that the treaty dealt with a “matter[] of the 

sharpest exigency” and that “the States individually [were]

incompetent to act”).
31

explication. As we have previously described, when Holland

was decided, and, more importantly, when the Founders

created the Treaty Power, it was generally understood that 

treaties should concern only matters that were clearly

“international” in character, matters which, in Holland‟s 

words, invoke a national interest that “can be protected only 

by national action in concert with that of another [sovereign 

nation].” Id. at 435. All the authors of The Federalist Papers, 

along with others from that era, considered the Treaty Power 

to be a necessary attribute of the central government for the 

important but limited purpose of permitting our “intercourse 

with foreign nations,” The Virginia Debates, supra, at 514

(statement of James Madison), and thereby allowing for 

compacts “especially as [they] relate[] to war, peace, and 

commerce,” The Federalist No. 64 (John Jay); see supra Part 

II.B.1. It was not a general and unlimited grant of power to 

the federal government.17 

 

17 That the Founders understood Article II, § 2 to be a 

limited grant of power is clear, as the Tenth Amendment itself 

verifies. The available evidence of their thinking is that they 

did not intend for treaties to become a vehicle to usurp the 

general powers reserved to the states. Cf. United States v. 

Pink, 315 U.S. 203, 230 (1942) (“It is of course true that even 

treaties with foreign nations will be carefully construed so as 

not to derogate from the authority and jurisdiction of the 

States of this nation unless clearly necessary to effectuate the 

national policy.”); Holmes, 39 U.S. at 569 (“The power to 

make treaties ... was designed to [be] ... consistent with ... 

the distribution of powers between the general and state 

governments.”).
32

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. Thus, 

Holland‟s statement that “there can be no dispute about the 

validity” of a statute implementing a valid treaty, id., is 

sensible in context and, in any event, binds us. We do not 

discount the significance of the Supreme Court‟s emphasis on 

the important role that federalism plays in preserving 

individual rights, Bond II, 131 S. Ct. at 2364, and it may be 

that there is more to say about the uncompromising language 

used in Holland than we are able to say,18 but that very direct 

 

18 We pause to consider how, if Holland were not so 

clear in its “valid treaty equal valid implementing legislation” 

holding, treaties and implementing legislation might usefully 

be reviewed in light of the apparently evolving understanding 

of the Treaty Power that we have described. See supra Part 

II.B.1. The Founders deliberately drafted Article II, § 2 

without defining the limits of the Treaty Power because they 

decided its scope required flexibility in the face of 

unknowable future events. Cf. The Virginia Debates, supra, 

at 514-15 (James Madison‟s observation that “it [is not] 

possible to enumerate all the cases in which such external 

regulations would be necessary. ... It is most safe, therefore, 

to leave it to be exercised as contingencies may arise”). We 

do not second guess the wisdom of their choice and 

acknowledge that any attempt to precisely define a subject 

matter limitation on the Treaty Power would involve political 

judgments beyond our ken. Cf. Baker v. Carr, 369 U.S. 186, 

211 (1962) (stating that resolution of issues “touching foreign 
33

 

relations” often “turn on standards that defy judicial 

application, or involve the exercise of a discretion 

demonstrably committed to” a coordinate branch); Pink, 315 

U.S. at 232 (“[T]he field which affects international relations 

is „the one aspect of our government that from the first has 

been most generally conceded imperatively to demand broad 

national authority‟ ... .” (citation omitted)); Lue, 134 F.3d at 

83 (“[I]t is not the province of the judiciary to impinge upon 

the Executive‟s prerogative in matters pertaining to foreign 

affairs.”). 

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, 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 (1803) (“It is 

emphatically the province and duty of the judicial department 
34

 

to say what the law is.”); cf. Baker, 369 U.S. at 211 

(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, 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 (stating that the 
35

language demands from us a direct acknowledgement of its 

meaning, even if the result may be viewed as simplistic. If 

there is nuance there that has escaped us, it is for the Supreme 

Court to elucidate.

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.19

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 ... 

 

concept of dual sovereignty was “one of the Constitution‟s 

structural protections of liberty”).

19 As Judge Rendell correctly points out in her 

concurrence, Bond‟s emphasis is entirely misplaced to the 

extent she may be contending that her prosecution violates the 

Necessary and Proper Clause because the United States did 

not have to prosecute her to comply with its obligations under 

the Convention. (See Rendell Concurrence Op. at 3 

(“Examining the scope of Congress‟s Necessary and Proper 

Power by definition requires us to examine the Act, not its 

enforcement.”).)
36

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,20 and indeed appears to 

justify her assertion that this case “trivializes the concept of 

chemical weapons” (Appellant‟s Supp. Br. at 53), the treaty 

that gave rise to it was implemented by sufficiently related 

legislation. 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 

 

20 The decision to use the Act – a statute designed to 

implement a chemical weapons treaty – to deal with a jilted 

spouse‟s revenge on her rival is, to be polite, a puzzling use 

of the federal government‟s power.
37

constitutionally enumerated power.”); Lue, 134 F.3d at 84 

(rejecting the argument “that because the Hostage Taking 

Convention targets a specific aspect of international terrorism 

– hostage taking – the statute effectuating the Convention 

must deal narrowly with international terrorism or risk 

invalidity” as a “cramped” view of Congressional authority, 

because treaty-implementing legislation must simply “bear a 

rational relationship to a permissible constitutional end”). 

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 (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));

21 Holland, 252 U.S. at 432 (“If the 

 

21 Although we acknowledge that the Raich court‟s 

admonition against excising a class of activities from a valid 

assertion of federal power may have related to its status as a 

Commerce Clause case based on the aggregation principle 

employed in that context, see Richard H. Fallon, Jr., Fact and 

Fiction About Facial Challenges, 99 Cal. L. Rev. 915, 936 

(2011) (opining that Raich “can be read as rejecting the 

possibility of successful as-applied challenges to assertions of 

legislative power under the Commerce Clause”), the principle 

would seem to hold with respect to federalism challenges 

arising from treaties within the Treaty Power‟s core. As we 
38

treaty is valid there can be no dispute about the validity of the 

[implementing] statute ... .”); cf. U.S. Const. art. VI, cl. 2 

(“[A]ll Treaties made ... shall be the supreme Law of the 

Land.”).

III. Conclusion

For the foregoing reasons, we will affirm the judgment 

of conviction.

 

have already observed, see supra note 18, it is hard to argue 

with Holland‟s rejection of federalism as an applicable 

concept as far as such treaties are concerned. 
1

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.1 But, as the 

Majority rightly concludes, the Act is a valid exercise of 

Congress‟s Necessary and Proper Power. Moreover, no 

jurisprudential principle, grounded in federalism or 

elsewhere, saves her from the Act‟s reach. 

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 

 

1 As her counsel argued: 

And it really inheres in the statute. It‟s 

not that there‟s anything wrong in the abstract 

with the United States ratifying this treaty. 

That‟s not where the problem is.

The problem is either at the moment they 

passed the statute that necessarily went this far 

or at the point that it becomes applied in this 

kind of situation.

(3d Cir. Argument at 13.)
2

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—indeed, 

Ms. Bond unequivocally concedes that point. In turn, the 

Act, which implements the Convention, is valid as an exercise 

of Congress‟s Necessary and Proper Power. That is because 

the Necessary and Proper Clause affords Congress “„ample 

means‟” to implement the Convention, and gives Congress 

the authority “to enact laws that are „convenient, or useful‟ or

„conducive‟ . . . to the „beneficial exercise‟” of the federal 

government‟s Treaty Power. United States v. Comstock, 130 

S. Ct. 1949, 1956 (2010) (quoting McCullogh v. Maryland, 4 

Wheat. 316, 408, 413, 418 (1819)). There is no question that 

the Act is rationally related to the Convention; it faithfully 

tracks the language of the Convention. Enacting a statute that 

essentially mirrors the terms of an underlying treaty is plainly 

a means which is “reasonably adapted to the attainment of a 

legitimate end”—ensuring that the United States complies 

with our international obligations under a valid treaty. 

Comstock, 130 S. Ct. at 1957 (internal quotation marks and 

citations omitted); see also United States v. Lue, 134 F.3d 79, 

84 (2d Cir. 1998) (upholding a statute implementing a treaty 

where “[t]he Act here plainly bears a rational relationship to 

the Convention; indeed, it tracks the language of the 

Convention in all material respects”). 

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 
3

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 (1920), forecloses 

challenging a valid statute implementing a valid treaty on 

Necessary and Proper grounds or federalism grounds. See

Maj. Op. at 31-35; Holland, 252 U.S. at 432 (“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 
4

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 is squarely prohibited by it. The fact that an 

otherwise constitutional federal statute might criminalize 

conduct considered to be local does not render that particular 

criminalization unconstitutional. As the Supreme Court 

explained in Gonzales v. Raich, when “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.” 545 U.S. 1, 23 (2005)

(internal quotation marks and citations omitted). The fact that 

the Act, which properly implements a valid treaty, reaches 

non-terrorist uses of chemical weapons leaves us powerless to 

excise such an individual instance. True, Raich involved 

Congress‟s Commerce Clause Power. But the Majority is 

correct to apply its principle to this case, particularly in light 

of the Supreme Court‟s rejection, in Holland, of federalism as 

a basis to challenge a statute implementing an otherwise valid 

treaty. See Maj. Op. at 37 n.21; Holland, 252 U.S. at 432. 

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 (1992), and Printz v. United States, 521 U.S. 898 

(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. 
5

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‟ 
6

obligations under a valid treaty.

2

 See Chemical Weapons 

Convention, art. VII.1, 32 I.L.M. 800, 810 (1993) (requiring 

each signatory nation to, “in accordance with its 

constitutional processes, adopt the necessary measures to 

implement its obligations under this Convention”). 

Additionally, whether there is a distinction, and where that 

distinction lies, between combating the use and proliferation 

of chemical weapons and prosecuting the malicious use of a 

chemical, is exceedingly difficult to discern. 

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 

 

2

I agree with Ms. Bond that states sometimes also bear some 

responsibility for ensuring compliance with our treaty 

obligations. See Medellín v. Texas, 552 U.S. 491 (2008). But 

that fact does not nullify Congress‟s authority to pass treatyimplementing legislation so as to ensure uniform, nationwide 

compliance with our international obligations, nor does it 

suggest that Congress lacks the power to do so. 
7

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 11 

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.
1

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 (1920).1

Absent that undertaking, a blank check exists for the 

Federal Government to enact any laws that are rationally 

related to a valid treaty and that do not transgress affirmative 

constitutional restrictions, like the First Amendment. This 

acquirable police power, however, can run counter to the 

fundamental principle that the Constitution delegates powers 

to the Federal Government that are “few and defined” while 

the States retain powers that are “numerous and indefinite.” 

The Federalist No. 45 (James Madison). 

 

1 As I noted in our Court‟s previous opinion in this case, see 

United States v. Bond, 581 F.3d 128, 135 (3d Cir. 2009), 

rev’d in part by, Bond v. United States, 131 S.Ct. 2355 

(2011), the scope and persuasiveness of Holland has

generated much academic debate. See, e.g., Nicholas Quinn 

Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 

1867 (2005); Edward T. Swaine, Does Federalism Constrain 

the Treaty Power?, 103 Colum. L. Rev. 403 (2003); Curtis A. 

Bradley, The Treaty Power and American Federalism, 97 

Mich. L. Rev. 390 (1998).
2

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, runof-the-mill criminal conduct. The statute is a troublesome 

example of the Federal Government‟s appetite for criminal 

lawmaking.

2

 Sweeping statutes like Section 229 are in deep 

tension with an important structural feature of our 

Government: “„The States possess primary authority for 

defining and enforcing the criminal law.‟” Brecht v. 

Abrahamson, 507 U.S. 619, 635 (1993) (quoting Engle v. 

Isaac, 456 U.S. 107, 128 (1982)); see also Patterson v. New 

York, 432 U.S. 197, 201 (1977) (“It goes without saying that 

preventing and dealing with crime is much more the business 

of the States than it is of the Federal Government . . . .”). 

 

2

“[T]he federal criminal code now includes at least 4,450 

crimes. Congress added an average of 56.5 crimes per year to 

the federal code between 2000 and 2007 and has raised the 

total number of federal crimes by 40 percent since 1970. 

Moreover, the federal criminal code has grown not just in size 

but in complexity, making it difficult to both (1) determine 

what statutes constitute crimes and (2) differentiate whether a 

single statute with different acts listed within a section or 

subsection includes more than a single crime and, if so, how 

many.” John C. Eastman, The Outer Bounds of Criminal 

Law: Will Mrs. Bond Topple Missouri v. Holland?, 2011 

Cato. Sup. Ct. Rev. 185, 193 (2011) (internal footnotes, 

quotation marks, and alterations omitted).
3

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.