Constitution's Limits on Federal Treaty Powers at Supreme Court Tuesday

When the United States joins a treaty, does the Constitution allow Congress to pass laws to implement that treaty that would normally be unconstitutional? That’s what the Supreme Court will consider this week in Bond v. U.S.

Carol Anne Bond is an immigrant who lives in Pennsylvania, who discovered in 2006 that her husband committed adultery with her close friend—Myrlinda Haynes—getting her pregnant. In her anger and pain, Bond attempted to poison Haynes by putting toxic chemicals on Haynes’ front door, mailbox, and car door. Haynes was injured on only one occasion from these incidents—and even then it was a minor thumb burn.

Federal postal examiners traced the chemical to Bond. She was arrested—then the U.S. Justice Department charged her for violating a chemical weapons treaty designed to stop the spread of weapons of mass destruction. To make this point clear: the federal government charged this jilted wife in the same way they would an international terrorist who used chemical weapons on an American civilian population.

Bond certainly committed crimes—state crimes such as trespass, battery, and maybe even attempted murder (though it appears Bond intended only to punish Haynes, not kill her). Bond was instead convicted for violating a law that Congress passed to implement the Chemical Weapons Convention, a treaty the U.S. Senate ratified in 1997.

On appeal, Bond’s lawyers argued that Congress’ statute implement that treaty violated the Tenth Amendment—that this was a state matter for local law enforcement. The U.S. Court of Appeals for the Third Circuit held that citizens like Bond lack standing to assert the state sovereignty aspect of the Tenth Amendment.

Supreme Court superstar Paul Clement took the case, and the Supreme Court granted review. In 2011 in the first case entitled Bond v. U.S., the justices held that American citizens do have legal standing to raise the Tenth Amendment as a defense in court.

The case went back to the lower courts, which acknowledged Bond’s defense but reaffirmed her conviction nonetheless, holding that it did not violate the Tenth Amendment.

Now the Supreme Court has granted review again in Bond II. Article I, Section 8 of the Constitution sets forth the powers of Congress; any provision of a federal law not authorized by one of the 18 clauses of Section 8 is unconstitutional. The Obama administration is arguing that if the United States enters into a treaty, the federal government can enact laws to implement the treaty that would otherwise be unconstitutional.

So the question in this case is whether the Treaty Clause of the Constitution somehow empowers the federal government to escape the Constitution’s limits on federal lawmaking authority. It is a very important case on the scope of reach of federal power, with implicating for proposed treaties on gun control, limits on parental authority, and state sovereignty.

The Supreme Court will hear arguments in Bond on Tuesday, Nov. 5. Former Solicitor General Clement will again represent Bond, arguing against President Obama’s Solicitor General Donald Verrilli. A decision is expected by July 2014.

Ken Klukowski is senior legal analyst for Breitbart News and on faculty at Liberty University School of Law. Follow him on Twitter @kenklukowski.


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