state implementing laws.  After the failure of the stakeholders to reach consensus, however, that approach has now been effectively abandoned in favor of an entirely federal implementation scheme modeled after the Federal Arbitration Act provisions implementing the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

To the extent that COCCA implementation will now likely take a purely federal path, the Supreme Court’s decision in Bond warns that when Congress implements treaty obligations and intends to supplant traditional state power, it must clearly express its intent to do so.  The Supreme Court emphasized that when a federal court interprets a federal law, it will presume that Congress did not intend to upset the “constitutional balance” between federal and state authority.  As such, a federal court must be certain that Congress intended to displace state power before finding that federal law over­rides it.  This “background assumption” is essential, according to the Supreme Court, to manifest the goals of our Constitution to prevent the accretion of power in a single authority at the expense of individual liberty. 

Moreover, the Supreme Court subtly reminded Congress that even if a treaty obligation could allow Congress significant authority to legislate in areas of typical state authority, it is not obligated to do so under our constitutional scheme when implementing a treaty.  Notably, the Chemical Weapons Convention, like COCCA, does not prescribe how a signatory state should implement the obligations, and is “agnostic between enforcement at the state versus federal level,” as noted in Chief Justice Roberts’ opinion in Bond.  In an abstract manner, at least, the Supreme Court in Bond suggested that some treaty obligations could be enforced through state law.  While this is certainly consistent with the “cooperative federalism” approach initially followed to implement COCCA, practical experience seems to show that creating 51 different implementation laws among vastly differing political, social, economic and cultural landscapes may not be the most effective way to realize the Framers’ intent to let the federal government take the lead in developing and enforcing America’s international obligations, especially with regard to international commerce.  

There is no doubt that American federalism presents what at times seems to be an insurmountable obstacle to federal objectives.  While this is not usually a problem in the conduct of U.S. foreign affairs as a general matter, it is an ongoing issue with the domestic enforceability of international obligations.  But, the tension between federal and state power, like the tension between the three branches of federal government, is a necessary component of our constitutional design and history.  As James Madison wrote in Federalist No. 51, “[i]n the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.”  As such, whether at a conference table in The Hague, in study groups convened by the State Department, in the backrooms of Congress, or in a state assembly, federalism remains the ultimate constraint on the future of private international law in America.