Bench Memos

Scope of Congress’s Treaty-Implementing Authority

Among the various legal developments that occurred while I was in Rome last week was an interesting Third Circuit decision in United States v. Bond, which held that a federal criminal statute implementing the 1993 Chemical Weapons Convention could constitutionally be applied against a woman who applied highly toxic chemicals to handles and knobs that she expected her husband’s pregnant mistress to touch. (If this factual summary sounds familiar, that may be because the Supreme Court decided a separate legal issue in the same case in 2011.) The case presented the question of how broadly the Court’s 1920 decision in Missouri v. Holland should be read, and Judge Thomas Ambro, in a concurring opinion, wrote separately

to urge the Supreme Court to provide a clarifying explanation of its statement in Missouri v. Holland that “[i]f [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.”

As Judge Ambro (a Clinton appointee) put it, in the absence of a clarifying explanation,

a blank check exists for the Federal Government to enact any laws that are rationally related to a valid treaty and that do not transgress affirmative constitutional restrictions, like the First Amendment. This acquirable police power, however, can run counter to the fundamental principle that the Constitution delegates powers to the Federal Government that are “few and defined” while the States retain powers that are “numerous and indefinite.” The Federalist No. 45 (James Madison).

I haven’t looked closely enough at this case to have a view whether it provides a good vehicle for the Court to re-address Holland, but the underlying issue is of great importance, as it bears directly on the transnationalist progressive project to misuse treaties to undermine our constitutional system of representative government and federalism.

H/t Jonathan Adler at Volokh Conspiracy.


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