The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power

53 Pages Posted: 16 Jan 2016 Last revised: 24 Feb 2016

See all articles by Michael J. Glennon

Michael J. Glennon

Tufts University - The Fletcher School of Law and Diplomacy

Robert D. Sloane

Boston University - School of Law

Date Written: February 24, 2016


Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This premise, upon which the core of the Court’s subsequent analysis relied, is not, as the orthodox reading suggests, a mere clear-statement rule. By its terms, it is mandatory rather than precatory; and it cannot be reconciled with Holland. It abjures Holland’s holding that a treaty and its implementing legislation must be evaluated together and that, under the Tenth Amendment, the validity of the latter depends upon the constitutionality in this regard of the treaty itself. Further, the federalism-based canon of constitutional avoidance and the background principle on which the Court relied both tacitly, but necessarily, presupposed that Holland is no longer good law. Holland nonetheless continues to represent the most sensible and defensible reconciliation of the tension between the Treaty Clause and the Tenth Amendment. By abandoning Holland, the Court has interpreted the Constitution as disabling the nation from honoring international obligations of the sort at issue in Medellín v. Texas — in which the Court held that the federal government can do what Bond now holds it cannot. Bond took a lamentable step backwards for the United States, recreating one of the paramount problems that beset the nation under the Articles of Confederation.

Keywords: federalism, treaties, foreign relations law, Tenth Amendment, Treaty Clause, international law, states, Missouri v. Holland, Bond v. United States, constitutional avoidance

JEL Classification: K00, K1, K10, K14, K19, K30, K33, K40

Suggested Citation

Glennon, Michael J. and Sloane, Robert D., The Sad, Quiet Death of Missouri v. Holland: How Bond Hobbled the Treaty Power (February 24, 2016). Yale Journal of International Law, Vol. 41, No. 2, Page 51, 2015, Boston Univ. School of Law, Public Law Research Paper No. 16-02, Available at SSRN:

Michael J. Glennon

Tufts University - The Fletcher School of Law and Diplomacy ( email )

Medford, MA 02155
United States

Robert D. Sloane (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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