Federalism and the Treaty Power: Breaking the 'Bond(s)' Between Nations: The Treaty Power and Status of Forces Agreements

Abstract

Federalism principles have long impacted the balance between state and federal authority, but today these principles are impacting the nation’s implementation of treaties regulating armed conflict. In 1920, the Supreme Court decided Missouri v. Holland, 252 U.S. 416 (1920). That seminal decision held that the nation’s treaty power was not limited by the federalism constraints of the Tenth amendment. Few treaties subsequently ratified by the nation symbolize the consequence of this decision more than the NATO Status of Forces Agreement (SOFA), a treaty that operates to divest states of their traditional authority to prosecute violations of their criminal law. Ratified as a self-executing treaty while the Senate debated, and then ultimately defeated, Senator Bricker’s attempts to amend the Constitution to overrule Missouri v. Holland and limit the domestic applicability of treaties, the NATO SOFA represents the importance of the treaty power in realizing critical national policy goals. The jurisprudential foundation for this longstanding supremacy of treaty law over state law is, however, wobbling under the weight of the Supreme Court’s recent decision in Bond v. United States, 134 S. Ct. 2077 (2014). Although that decision in no way considered the impact of SOFAs, it did create a demanding standard for assessing when a treaty preempts traditional state law making authority. This article will explore the debate over the scope of the Constitution’s treaty power seen in the Third Circuit’s and Supreme Court’s consideration of the Bond case, and place the NATO SOFA treaty in its historical context. After evaluating the Bond case itself and its clear indication rule, the article next explores its implications for the NATO SOFA treaty, and consequently, the nation’s treaty commitments.

The first Bond decision, Bond v. United States, 131 S.Ct. 2355 (2011), demonstrates that individual citizens will have standing to contest the validity of treaty-implementing legislation (and perhaps self-executing treaties) that circumscribes their behavior in areas traditionally reserved to the states. As a result of Bond, federal courts are now routinely hearing federalism challenges to federal prosecutions, even for violations of statutes grounded in the commerce clause or other enumerated powers far removed from the treaty power. The Supreme Court’s failure to clarify either the continued validity of Missouri v. Holland, or the scope of the constitutional treaty power in Bond, only postpones resolution of this important question. The NATO SOFA, because of its ratification amidst the Bricker Amendments attempts of the 1950s, is an important affirmation by the two political branches of the breadth and critical importance of a robust treaty power. The NATO SOFA, like many SOFAs implicates fundamental foreign policy, war powers, and national security interests of the nation, but also directly intrudes upon areas of traditional state responsibility in our federal system — criminal accountability. Failure to comply with the reciprocal treaty obligations central to the NATO SOFA would leave US military members and their families exposed to retaliatory prosecution overseas, and could affect the integrity of the NATO alliance itself. These treaties potentially represent a direct conflict between a core federal and state function, and will ultimately demand answers to the questions deferred by Bond — when in conflict, which will prevail in our federal system? Given the central concern of the Founders during the drafting of the Constitution over the states’ interference with the fulfillment of national treaty obligations, it is particularly ironic that federalism may still have an impact on such an important function of the federal government in the 21st Century.

This article builds on my prior article (with Prof. Geoffrey Corn), Viewing Treaties through a Military Lens: Testing the Limits, and explains how Bond has substantially muddied the waters in relation to self-executing treaties, using the NATO SOFA as an illustration of the risk of an overbroad interpretation of Bond’s adjustment to the Missouri v. Holland precedent.

Keywords: treaty, status of forces agreement, Bond v. United States