United States v. Bond

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)
_______________

1
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
_________

2
 _______________

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

3
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

4
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,1 but 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.

5
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”).

6
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.”4 252 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.

7
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 as-
applied 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

8
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.

9
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

10
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.

11
“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

12
“„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

13
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

14
 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.

15
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

16
(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.

17
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]

18
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

19
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

20
 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.

21
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

22
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.

23
 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

24
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

25
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”).

26
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.”).

27
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.

28
 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.

29
 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”).

30
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.”).

31
 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

32
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

33
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

34
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.”).)

35
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.

36
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

37
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.

38
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.)

1
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

2
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

3
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.

4
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‟

5
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 treaty-
implementing legislation so as to ensure uniform, nationwide
compliance with our international obligations, nor does it
suggest that Congress lacks the power to do so.

6
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.

7
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).

1
 Since Holland, Congress has largely resisted testing
the outer bounds of its treaty-implementing authority. See
Peter J. Spiro, Resurrecting Missouri v. Holland, 73 Mo. L.
Rev. 1029 (2008). But if ever there were a statute that did
test those limits, it would be Section 229. With its shockingly
broad definitions, Section 229 federalizes purely local, run-
of-the-mill criminal conduct. The statute is a troublesome
example of the Federal Government‟s appetite for criminal
lawmaking.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).

2
 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.

3