¹ 134 S.Ct. 2077 (2014), slip op. available at http://www.supremecourt.gov/opinions/13pdf/12-158_6579.pdf.

² see 18 U.S.C. §229 (2012) (implementing Convention on the Prohibition of the Development, Production, Stockpiling and Useof Chemical Weapons andon Their Destruction,opened for signature Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 UNTS 45 [hereinafter Chemical Weapons Convention]).

³ U.S. Const. amend. X (“The 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.”).

⁴ see U.S. Const. Art. II, §2 (providing that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”).

⁵ see U.S. Const. Art. VI (“[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding.”); see also, e.g., Foster v. Neilson, 27 U.S. (2 Pet.) 253, 254 (1829) (noting that a treaty is “to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision”).

⁶ See, e.g., Ware v. Hylton, 3 U.S. (3 Dall.) 199, 236 (1796) (Chase, J.) (“A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way.”). For additional discussion of the status of treaties in the U.S. legal system, see Curtis A. Bradley, International Law in the U.S. Legal System, ch. 2 (2013).

⁷ Missouri v. Holland, 252 U.S. 416 (1920).

⁸ Id. at 433.

⁹ Id. at 434.

¹⁰ There is a suggestion in Holland that the treaty power might not be subject to any constitutional limitation other than the two-thirds senatorial consent process specified in Article II. See id. at 433 (“Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. It is open to question whether the authority of the United States means more than the formal acts prescribed to make the convention.”). The Supreme Court subsequently made clear, however, that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.” Reid v. Covert, 354 U.S. 1, 15 (1957) (plurality opinion).

¹¹ See generally Duane Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower’S Political Leadership (1988). For an extensive defense of Holland on historical grounds, see Golove, David M., Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075 (2000)CrossRefGoogle Scholar.

¹² See, e.g., Restatement(Second) Foreign Relations Law of the United States §117(1)(a) & cmt. b (1965) (contending that the treaty power is limited to matters “of international concern” and that treaties “must relate to the external concerns of the nation as distinguished from matters of a purely internal nature”); Treaties and Executive Agreements: Hearings Before a Subcomm. of the S. Comm. on the Judiciary on S.J. Res. 1, 84th Cong. 183 (1955) (statement by Secretary of State John Foster Dulles that a treaty cannot regulate matters “which do not essentially affect the actions of nations in relation to international affairs, but are purely internal”); Statement of Charles Evans Hughes, 23 ASIL Proc. 194, 194–96 (1929) (suggesting that the treaty power might be limited to “matters of international concern” and thus might not allow for the regulation of matters “which normally and appropriately were within the local jurisdictions of the States”). But see Restatement (Third) of the Foreign Relations Law of the United States §302 cmt. c (1987) (“Contrary to what was once suggested, the Constitution does not require that an international agreement deal only with ‘matters of international concern.’”).

¹³ 252 U.S. at 435. The district court inHolland had concluded that, because the migratory birds treaty conferred reciprocal benefits on the United States and Canada, its subject matter fell within the treaty power. see Transcript of Record at 13, Missouri v. Holland, 252 U. S 416 (1920) (No. 609).

¹⁴ 252 U.S. at 432.

¹⁵ U.S. Const. Art. I, §8, cl. 18.

¹⁶ See, e.g., Neely v. Henkel, 180 U.S. 109, 121 (1901) (observing that Congress’s authority under the Necessary and Proper Clause “includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power”).But see Rosenkranz, Nicholas Quinn, Executing the Treaty Power, 118 Harv. L. Rev. 1867 (2005)Google Scholar (arguing that the Necessary and Proper Clause gives Congress only the power to enact legislation to facilitate the making of treaties, not the implementation of treaties already made).

¹⁷ Cf. United States v. Comstock, 560 U.S. 126, 134 (2010) (interpreting the Necessary and Proper Clause as allowing Congress to enact any legislation “rationally related to the implementation of a constitutionally enumer ated power”).

¹⁸ 252 U.S. at 434.

¹⁹ Id. at 435.

²⁰ see U.S. Dep’t of State, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2013, at http://www.state.gov/documents/organization/218912.pdf.

²¹ see Bradley, Curtis A., The Treaty Power and American Federalism, 97 Mich. L. Rev. 390, 396–99 (1998) (describing this development)CrossRefGoogle Scholar.

²² See, e.g., United States v. Morrison, 529 U.S. 598 (2000); City of Boerne v. Flores, 521 U.S. 507 (1997); United States v. Lopez, 514 U.S. 549 (1995).

²³ see Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992).

²⁴ See, e.g., Alden v. Maine, 527 U.S. 706 (1999); Seminole Tribe of Fl. v. Florida, 517 U.S. 44 (1996).

²⁵ See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566 (2012) (upholding individual mandate in Affordable Care Act under Congress’s taxing power); Gonzales v. Raich, 545 U.S. 1, 18 (2005) (holding that Congress may regulate even noncommercial local activities if it “concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity”).

²⁶ Gregory v. Ashcroft, 501 U.S. 452 (1991).

²⁷ Id. at 460.

²⁸ Id. at 464;see also, e.g., United Statesv.Bass, 404 U.S. 336, 349 (1971) (“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.”).

²⁹ See supra note 2.

³⁰ Chemical Weapons Convention, supra note 2, Art. VII(1)(a).

³¹ Id., Art. II(1).

³² Id., Art. II(2).

³³ Id., Art. II(9).

³⁴ 18 U.S.C. §§229(a)(1), 229F(8)(A) (2012).

³⁵ see Bond v. United States, 131 S.Ct. 2355 (2011).

³⁶ See, e.g., id. at 2364 (“By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”).

³⁷ 501 U.S. 452 (1991); see supra text at notes 26–28.

³⁸ 131 S.Ct. at 2364.

³⁹ Bond v. United States, 681 F.3d 149 (3d Cir. 2012).

⁴⁰ Id. at 151.

⁴¹ Id. (quoting 252 U.S. at 432).

⁴² Id. at 154.

⁴³ By this point, Bond was out of prison but still subject to court supervision.

⁴⁴ The page number references in the text are to volume 134 of the Supreme Court Reporter.

⁴⁵ Justice Alito had raised the hypothetical about pouring vinegarin a gold fish bowl during the first oral argument before the Court, in 2011. see Transcript of Oral Argument at 29–30, Bond v. United States, 134 S.Ct. 2077 (2014) (No. 09-1227), at http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-1227.pdf. The hypothetical was discussed again during the second oral argument, and the attorney for the government attempted to dismiss it by noting that it “is not a real case.” Transcript of Oral Argument at 36, id. (No. 12-158), at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-158_8m58.pdf.

⁴⁶ Consider, for example, the Hostage Taking Act 18 U.S.C. §1203 (2012), which implements the International Convention Against the Taking of Hostages, a treaty ratified by the United States in 1984. By its terms, the Act appears to cover even local kidnappings that are designed to extract money from the victim’s family, as long as an alien is involved. In decisions prior to Bond, lower courts had concluded that the Act applied in such local kidnapping cases, and that even if such an application of the Act exceeded Congress’s normal legislative authority, it was valid under Missouri v. Holland. see United States v. Ferreira, 275 F.3d 1020 (11th Cir. 2001); United States v. Wang Kun Lue, 134 F.3d 79 (2d Cir. 1997).

⁴⁷ Cf. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 374 n.8 (2000) (noting, in a case involving a challenge to a state law that restricted trade with Burma, that “[w]e leave for another day a consideration in this context of a presumption against preemption”).

⁴⁸ see Curtis A. Bradley, Bond, Clear Statement Requirements, and Political Process, AJIL Unbound (June 3, 2014, 10:00 AM),at http://www.asil.org/blogs/; Kevin L.Cope, , Lost in Translation: The Accidental Origins of Bond v. United States, 112 Mich. L. Rev.: First Impressions 133 (2014)Google Scholar.

⁴⁹ see Jean Galbraith, Silences in the Bond Case, Opinio Juris (June 2,2014, 8:50 PM),at http://opiniojuris.org.

⁵⁰ In arguing the case before the Supreme Court, the solicitor general acknowledged that he did not “think anybody would say that... whether or not Ms. Bond is prosecuted would give rise to an international incident.” Transcript of Oral Argument at 46, Bond v. United States, No. 12-158, supra note 45.

⁵¹ See generally Einer Elhauge, Statutory Default Rules: How to Interpret Unclear Legislation (2008).

⁵² International efforts to address private International Law topics have long implicated federalism concerns within the United States. See, e.g., Nadelmann, Kurt H., Ignored State Interests: The Federal Government and International Efforts to Unify Rules of Private Law, 102 U. Pa. L. Rev. 323 (1954)CrossRefGoogle Scholar.

⁵³ See, e.g., David Golove & Marty Lederman, Stepping Back from the Precipice in Bond, Just Security (June 3, 2014, 5:40 PM), at http://justsecurity.org.