Although the majority’s outcome was correct, the application of the clear statement rule in this situation seems incorrect. The majority misconstrues the statute not to reach Mrs. Bond’s conduct when it should have done so. The concurrences properly assert that despite the conduct here falling within the clear definition of the statute, the Court should have reversed the conviction on constitutional grounds. As a result of this decision, Congress should now plan to make clarifying statements about the scope of the statute in order to avoid the clear statement problem identified here.
Separately, although only dicta, Justice Scalia’s assertion that the Necessary and Proper Clause does not extend beyond the “making” of treaties does not seem correct. It appears necessary and proper for the making of treaties that the power to execute be implied, and the non-self executing treaty was a later judicial invention that the original language could not have taken into account. However, Justice Thomas’s use of the domestic and international matter distinction appears to be a useful limit on the treaty power, and it is on that point that future cases could seek to draw a distinction.
Dean M. Nickles,
Bond v. United States,
Notre Dame L. Rev. Online
Available at: https://scholarship.law.nd.edu/ndlr_online/vol90/iss2/2