“Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.” That observation, first penned by English playwright and poet William Congreve, certainly applies to Carol Anne Bond. Her amateurish attempts at revenge have resulted in two trips to the Supreme Court of the United States and will likely result in one of the most consequential constitutional cases in the next, or any, term. The justices must decide whether our Congress is one of limited powers or whether the Treaty Power grants Congress potentially unlimited power to regulate anything, anywhere, at any time.
In 2006, Carol Anne Bond discovered that her best friend, Myrlinda Haynes, had an affair with her husband and was pregnant with his child. Vowing revenge, Bond, who was a technical assistant working for a large chemical manufacturer, spread chemicals (one purchased online, the other stolen from her employer) on Haynes’ car door, mailbox, and apartment doorknob on 25 occasions over the course of three months. Although Haynes was able to detect the presence of these chemicals because of their distinctive color, on one occasion she forgot to clean the door knob and suffered a minor chemical burn on her thumb. Bond was apprehended after federal postal inspectors placed surveillance cameras around Haynes’s home and identified her as the perpetrator. Rather than leave this salacious, but garden variety crime to local authorities, federal prosecutors pursued a rather novel approach: charging Bond with violating the Chemical Weapons Implementation Act of 1998 (CWIA), a statute designed to implement the United States’ treaty obligations under the 1993 Chemical Weapons Convention.
The Chemical Weapons Convention, ratified by the Senate in 1997, is an international arms-control agreement that was intended to address the proliferation of weapons of mass destruction by outlawing the production, stockpiling, and use of chemical weapons. Because the treaty was not self-executing, Congress passed the CWIA, 18 U.S.C. §§ 229 et seq., making it unlawful for a person “knowingly” to “develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”
Bond’s conduct clearly violated state law but would not appear to implicate any core concern of the treaty. She moved to dismiss the charges arguing that, as applied to her, section 229 exceeded Congress’s enumerated powers and invaded the powers traditionally reserved to the States by the Tenth Amendment (“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.”). Bond also challenged the statute as exceeding Congress’s power under the Commerce Clause, but the government responded that section 229 was not passed pursuant to any Article I, Section 8 enumerated power of Congress, but rather was passed pursuant to the Treaty Power and the Necessary and Proper Clause.
The trial court denied Bond’s motion, and she pled guilty, reserving the right to appeal. On appeal, the U.S. Court of Appeals for the Third Circuit ruled that Bond lacked standing to challenge the CWIA, but in June 2011, the Supreme Court unanimously reversed in an opinion by Justice Anthony Kennedy (Bond I), holding that a criminal defendant indicted under a federal statute has standing to challenge that statute on the grounds that it interferes with States’ rights under the Tenth Amendment.
On remand, the Third Circuit affirmed Bond’s conviction, expressing reluctance but believing itself “bound to take at face value” a single sentence in the 1920 Supreme Court case Missouri v. Holland, in which Justice Oliver Wendell Holmes wrote:
“If [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.”
The Third Circuit reluctantly, but broadly, construed Holland as allowing the Senate and the President to expand the federal government’s constitutional authority by negotiating a valid treaty requiring the passage of implementing legislation that would otherwise exceed Congress’s enumerated powers.
In Bond’s second trip to the Supreme Court, the question that the justices will address is whether the Treaty Power expands Congress’s power beyond its enumerated powers set forth in Article I, section 8. This issue is especially significant today given the expanding scope and number of international treaties in existence and the arguments of prominent legal transnationalists such as former State Department Legal Advisor Harold Koh who claim that internationally-defined norms should be binding on the United States as customary international law and should be used to re-interpret our Constitution. For example, opponents of capital punishment have cited international treaties to press the Supreme Court to eliminate the death penalty. Women’s rights groups lobby for the adoption of rights set forth in the Convention on the Elimination of All Forms of Discrimination Against Women, which was signed but never ratified by the United States, that would achieve the goals of the failed Equal Rights Amendment. Child advocates urge the recognition of the rights enumerated in the Convention on the Rights of the Child, which was also signed but never ratified by the United States. And supporters of bans on “hate speech” invoke international norms in instruments such as the Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights in attempting to trump First Amendment objections.
Most international treaties are premised on the assumption that all nations have the same structure and can therefore implement treaties in the same way. However, unlike most other countries, we have a federal system in which many of the subjects covered by treaties are, or at least heretofore have been, left to state and local governments and to the people themselves to address as they see fit. Indeed, unlike other countries, the Supreme Court made clear in cases such as Printz v. United States, that our Constitution limits the authority of the federal government to insist that state officials act as its agents to carry out federal policy. If the legislative power can be increased without limit as to scope or subject matter by treaty, this would represent a significant disruption of the delicate balance of our federal system and would undermine the fundamental principle that Congress’s powers are limited to those enumerated in Article I, Section 8.
Any analysis of this issue must, of course, begin with the text of the Constitution itself. The Treaty Power reads: “[The President] shall have the power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur…” Treaties are also mentioned in the Supremacy Clause : “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all 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 notwithstanding.” . . .
The Necessary and Proper Clause states: “The Congress shall have Power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” However, as the Supreme Court has stated, most recently in NFIB v. Sebelius, this clause is not an independent source of congressional authority, but rather involves authority incidental to, and in service of, Congress’s enumerated powers.
As Chief Justice John Marshall wrote in Marbury v. Madison, “The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Specifically, Congress’s powers are limited to those “herein granted” in Article I.
The Constitution empowers the President to negotiate treaties and the Senate to ratify them. However, that does not, or at least should not be interpreted to, mean that the federal government is solely responsible for implementing treaties, even if ultimately the United States breaches its treaty obligations because a State refuses to comply when it comes to areas that are exclusively within its purview such as the exercise of police power, a principle the Court seemed to recognize in Medellin v. Texas (2008) (which is, however, distinguishable in that Congress did not pass any implementing legislation after ratifying the Vienna Convention Consular Relations, a non-self-executing treaty, relying instead on a Presidential Memorandum requiring States to reconsider and review the claims of certain Mexican nationals without regard to state procedural default rules).
Moreover, while it is true that treaties receive the force of law under the Supremacy Clause, that status belongs only to “treaties made, or which shall be made, under the authority of the United States.” A treaty covering issues outside the scope of federal power would go beyond that authority and would, therefore, not be part of the “supreme law of the land.” And any ensuing legislation passed by Congress that would purport to implement such a treaty may be “necessary,” but it wouldn’t be “proper.”
To give proper regard to federalism and the States’ sovereignty under the Tenth Amendment, as well as the powers reserved to the people, the power to make treaties should be construed to allow the federal government to make commitments regarding how it will use its enumerated powers, but not to legislate on whatever subjects it wants, no matter how intrusive, so long as the issue is covered by a treaty with any foreign power that has been ratified by two-thirds of the Senate.
In Reid v. Covert (1957), a plurality of justices agreed that the federal government may not exploit the Treaty Power to circumvent the Bill of Rights. In discussing the Treaty Power and the Supremacy Clause, the Court stated:
There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result… It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights — let alone alien to our entire constitutional history and tradition — to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.
The principles of this portion of the plurality’s opinion are sound. The plurality opinion in Reid purported to distinguish Holland by stating that, “To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier.” This proposition is less sound since the people and the States delegated no such power. It would be incongruous for the Supreme Court to limit the Treaty Power with respect to trumping the first eight amendments in the Bill of Rights but not to do so with respect to the Tenth Amendment.
As the Court so poignantly noted in Bond I:
Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.…[T]he individual liberty secured by federalism is not simply derivative of the rights of the States.
In 1788, Thomas Jefferson wrote: “The natural progress of things is for liberty to yield and government to gain ground.” Whether our Constitution will continue to provide any check on that “progress” will be determined in large measure by the outcome of the Supreme Court’s decision in Bond next term.
- See more at: http://www.executivebranchproject.com/the-most-important-constitutional-law-case-you-probably-havent-heard-of-how-an-act-of-vengeance-turned-into-an-assault-on-federalism/#sthash.anZPF8aa.dpuf