Re: Oral Argument in Bond v. United States

This morning the Supreme Court held oral arguments in Bond v. US, in what looked to be yet another uphill argument for the federal government.

Today’s arguments didn’t garner the coverage in the media that some of the “sexier” issues have this term, and had a surprisingly short line for both public and Supreme Court Bar seats. But the collection of international-law scholars present and even the rare visit by retired justice Sandra Day O’Connor hinted at its real significance.

The case, which Ed previewed here, and in which my organization filed an amicus brief, deals with the scope of the treaty power, or rather, whether Congress’ power to enact laws can be expanded by the ratification of a treaty.

The government claims that Congress may make laws to effect non-self-executing treaties regardless of whether it had independent Article I power to enact those laws. Lawyers for Ms. Bond, defendant in the case, claim that the federal government cannot make laws normally within the state police powers without some specific nexus to proper federal interests, and a treaty doesn’t get you out of that requirement.

The issues may seem arcane, but the importance of vigilantly maintaining the constitutional limits on government power cannot be overstated. Large portions of the argument focused on the difficulty in drawing a line to maintain any limits on government power if the administration’s argument were to prevail.

The absurd consequences of the government’s position are front and center in the case at hand, in which a woman who was trying to poison her husband’s mistress was prosecuted under a law implementing a chemical-weapons treaty. Justices Kennedy and Alito each mentioned how bizarre it was that the government made a federal case out of what was literally a domestic dispute. Justice Alito also pointed out the the law’s terms were broad enough to encompass him handing out Halloween candy because chocolate is a toxic chemical, at least to dogs, and Justice Breyer noted that the terms of the law would seem to criminalize actions long assumed to be purely the subject of state law, such as arson and poisoning.

The lineup after today’s argument seems to be against the federal government, with only Justices Kagan, Sotomayor, and Ginsburg defending a broad interpretation of the treaty power. The three female justices claimed the text of the statute at issue simply mirrored the language in a valid chemical-weapons treaty, and questioned how the treaty could be valid while the statute not. (Paul Clement, arguing for Ms. Bond, along with Justice Scalia, pushed back against the suggestion that the language was identical.). Justice Kagan seemed to be the strongest supporter of the position held by her successor, Solicitor General Verilli, and the government. She attacked Bond on an number of fronts, arguing that the case is equivalent to Missouri v. Holland, the one major precedent in this area of law that concluded almost offhand that if a treaty were valid, it’s enacting legislation would be. She also pushed it onto conservatives’ own turf to argue that the original understanding of the treaty power was broad, citing debates among the Framers as to whether or not to include subject-matter limitations on treaties. (They ultimately chose not to.)

The biggest pushback against the government came from the justices’ concern that the government’s position was without any real limit. That seemed to be Justice Breyer’s major concern, and he repeatedly returned to the problem of allowing a treaty passed by the president and the Senate to expand constitutional power. He suggested several possible ways to limit the government’s interpretation, either by limiting the range of chemicals covered by domestic legislation to those listed in the treaty itself, or by reading the treaty only to authorize legislation about “warlike” use of chemicals. But each time, the solicitor general resisted a limitation to the government’s authority, even suggesting that the court would seriously undermine our foreign relations if it did anything else.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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