Are there any constiutional limits on legislation implementing treaties?

[KyJim]

That question was addressed today by the Supreme Court in Bond v. U.S. It may be answered or the Court could rule on more narrow grounds. Scotus Blog has an argument recap here: http://www.scotusblog.com/2013/11/argument-recap-a-tense-hour-at-the-court/

At issue is legislation implementing international treaties on chemical warfare. The government charged the defendant with spreading some poisonous chemicals in places where a friend having an affair with her estranged husband was likely to (and did) touch. A fuller background is here: http://www.scotusblog.com/2013/11/argument-preview-new-look-at-old-precedent/.

Not only is this of interest generally, but it is of extreme interest to those of us who view treaties like the U.N. Arms Trade Treaty as potential backdoor methods at greater firearms regulation. I have often seen the comment here that a treaty can't trump the Constitution so there is no reason to fear. First, the government can regulate a great deal without violating the Constitution. Second, there seems to be some real question in the minds of a couple of justices about whether a treaty might, in fact, trump the Constitution.

 

[Tom Servo]

Yes. The first thing that springs to mind is the Supreme Court's decision in Reid v. Covert, in which they found the Constitution supersedes treaties.

 

[Al Norris]

I'll have to disagree, in as much as Missouri v. Holland is still good law and was not overturned by Covert.

That was my first thought.

 

[thallub]

i'm not a lawyer, nor do i play on on TV or anywhere else.

The migratory bird treaty became US law when both houses of congress passed implementing legislation. Some states saw nothing wrong with the hunting of migratory birds to extinction. No constitutional amendment allows for the mass killing of migratory birds.

In another matter, a federal prosecutor has charged a woman with violation of the chemical weapons convention. Methinks this was a stretch by an overzealous prosecutor. In any event, SCOTUS may have something to say about another treaty that became US law.

 

[KyJim]

Off topic:

In another matter, a federal prosecutor has charged a woman with violation of the chemical weapons convention. Methinks this was a stretch by an overzealous prosecutor. In any event, SCOTUS may have something to say about another treaty that became US law.

No, this is not off topic. It is the very oral argument I linked to at Scotus Blog.

Here are a few lines from the oral argument recap to illustrate:

The case, on one level, is only about the power of federal prosecutors to make a federal criminal case out of a woman’s attempt to get revenge on her husband’s lover by trying to poison her, but on another level it is about whether the Constitution puts any limits at all on what the President and Congress can do under the Constitution’s treaty power. The woman, Carol Anne Bond, was convicted of violating a law that was passed by Congress to carry out a global treaty against the spread of chemical weapons. . . .

Chief Justice John G. Roberts, Jr., repeatedly questioned the Solicitor General about whether there is any constitutional limit on Congress’s power to enter treaties or implement them, and whether a treaty could give Congress the authority to claim ”national police powers.” Verrilli answered that it would be ”unimaginable that the Senate would ratify” such a treaty.

But that answer prompted Justice Anthony M. Kennedy to say: “It seems unimaginable that you did bring this prosecution (of Carol Bond).”

Emphasis added.

 

[Al Norris]

A transcript of the orals are here: 12-158. The audio should be available at the end of the week.

I like to read the transcript while I'm listening to the audio. While I don't get to see the body language of the participants, I at least get to hear the tonal inflections.

 

[Frank Ettin]

I may be missing something, but I think there are really two parts to the question of the supremacy of the Constitution over treaties.

As I see Bond, the issue is whether a treaty can effectively allow Congress to legislate in areas outside the usual scope of its Article I enumerated powers.

The Reid issue is whether a treaty can allow legislation impairing constitutionally protected rights.

It's perhaps a subtle distinction. But as stated by Mr. Clement in opening his oral argument on behalf of Bond, the central question is:

...If the statute at issue here really does reach every malicious use of chemicals anywhere in the nation, as the government insists, then it clearly exceeds Congress's limited and enumerated powers. This Court's cases have made clear that it is a bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct without regard to a jurisdictional element or some nexus to a matter of distinctly Federal concern.

The President's negotiation and the Senate's ratification of a treaty with a foreign nation does not change that bedrock principle of our constitutional system...

I don't see the statute at issue being challenged because it abrogates or violates any personal, protected right. Rather the challenge is based on the defined scope of power of the legislature.

So arguably, even if the Supreme Court finds against Mrs. Bond, the principle set out in Reid remains valid.

 

[Al Norris]

Audio of the orals are here: 12-158. Bond v. United States. If your web browser is properly set-up (embedded real-audio), clicking on the link will take you to a page where the audio will be streamed to you automatically. In addition, you may download both the audio and the transcript from this page to read/listen at a later date.

As is usual in high profile cases, the transcript leaves out many remarks by the Court and the counsel.

I get a sense from the Court, that the justices are all concerned about the scope of the treaty power, in general: Can a treaty advance the powers of the Federal Government, such that it leaves behind what is enumerated and grants new power(s) to the Congress?

Justice Kagan makes the point of the Necessary and Proper clause, as just that vehicle (middle of pg 25 of the transcript). That is the only time this is brought up, yet I don't think that she was the only justice who made that connection. I believe it to be in the forefront of the Courts mind. This in the manner of the questioning and especially in the attack on Verrilli. This is one elephant in the room that the Court recognizes.

While no one really questions whether or not a treaty is valid (as signed and ratified by the Senate), the Court does question whether or not the implementing laws (as passed by the Congress) might or might not be valid. That was the point of all the hypotheticals the Court used in its questioning of both sides.

Then, there is the very real danger of a Senate that would ratify a treaty that is inimical to States authority. While Verrilli implies that the Senate would never do such a thing, C.J. Roberts brought home the idea that it could, as it (the Senate) was no longer constrained by the States (17th Amendment - pg. 28 - another unspoken elephant).

This case has huge implications on the nature of Federalism, as it will be understood from this point on.

As such, how the Congress implements (I'm assuming it will be ratified at some point in time) the Small Arms Treaty, will hinge upon the outcome of this case.