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In 2005, a Pennsylvania woman named Carol Bond attempted to murder her best friend, who was also her husband’s lover and pregnant with his child, by spreading chemical poisons on the mailbox and around her rival’s home. Murder attempts like Bond’s are all too common. But her case is not. Overreaching federal prosecutors took the novel step of charging Bond with a violation of the Chemical Weapons Convention — the very treaty that has failed to stop the Assad regime in Syria.
The Supreme Court unanimously rejected this latest attempt by Eric Holder’s Justice Department to expand federal power. Although the Court handed the Justice Department an embarrassing 9-0 defeat, however, its opinion narrowly interpreted a related federal statute and missed the opportunity to place important and necessary constitutional limits on the treaty power.
The federal government’s decision to use the CWC follows a belief, widely shared by many international lawyers, that treaties provide Washington with a uniquely powerful source of power over the states. The Obama administration invoked Missouri v. Holland (1920), which upheld a treaty with Canada that banned the killing of migratory birds.. “It is obvious that there may be matters of the sharpest exigency for the national wellbeing that an act of Congress could not deal with but that a treaty followed by such an act could,” Justice Oliver Wendell Holmes wrote for the majority.
Ever since Missouri, lawyers in favor of broad federal powers have argued that Washington’s need to carry out a treaty should allow it to override state law, even if those laws would normally be shielded from federal power by the Constitution’s Tenth Amendment. This theory of federal power, potentially unlimited when globalization touches most aspects of everyday life, is catnip for an administration built on claims of boundless power over domestic affairs.
Holmes was wrong in 1920, however, and the Obama administration is wrong today. The Founders’ original understanding supports a federalism limitation on the treaty power, and this is especially compelling in light of today’s far-reaching and ambitious modern treaties. Unfortunately, the Court’s opinion refused to directly reject Missouri’s mistaken approach.
While the Founders established a treaty power to unify foreign policy in Washington, they did not wish to expand federal power beyond the limitations on Congress imposed by the Constitution. Early peace treaties with the British came close to encroaching on state powers by preserving pre-Revolutionary War debts. Still, the federal government has rarely relied on treaties for domestic regulation. Indeed, the drafters of the Constitution’s created a sweeping “necessary and proper” clause to vest in Congress all of the powers it would need to carry out its constitutionally delegated powers, and thus avoid exploiting innocent clauses to carry out treaties.
The primary purpose of treaties was, and still is, to make agreements with foreign nations over matters of international concern. Traditionally, these included matters such as making peace, improving trade and diplomatic relations, and the protection of foreign nationals. Today, international law has grown more complex and ambitious. Modern treaties regulate a wide range of subjects that were historically the exclusive province of domestic regulation. Human rights treaties such as the International Covenant on Civil and Political Rights or the Convention for the Elimination of Discrimination Against Women affect areas as wide-ranging as criminal punishment, employment and labor relations, civil rights, and family relations.
Such treaties do not really formalize cooperation between nations. Rather, they seek to reach inside the United States to control its treatment of its own citizens, even though the Constitution vests sovereignty over these decisions in the democratic process of the federal and state governments. Three members of the Court (Justices Scalia, Thomas, and Alito) would have limited the treaty power to the same constitutional limitations imposed on other federal laws over the states. This would have ensured that treaties could not be used as an end-run around the Tenth Amendment. As globalization touches more and more of daily life, the plausible sweep of treaties will tempt a government always looking for new ways to extend its grasp.
Unfortunately, Chief Justice John Roberts led a majority of the remaining Justices in rewriting the CWC law to avoid this critical constitutional question. Even though Congress defined chemical weapon to include “a toxic chemical and its precursors”; it defined a “toxic chemical” as “any chemical” that can cause “death, temporary incapacitation or permanent harm” to people or animals. There is only one exception: chemicals used for “any peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical” activity.
No Justice doubted that Ms. Bond’s attack on her rival fell within the plain meaning of Congress’s words. But the majority observed that the law would represent a serious intrusion into the rights of the states to regulate garden-variety criminal law and so had to be rewritten. The Court superimposed on Congress’s language a new requirement: “chemical weapon takes account of both the particular chemicals” used by the defendant “and the circumstances.” Because Bond’s assault did not amount to “acts of war, assassination, [or] terrorism,” the Court concluded that her prosecution fell outside the law.
Court watchers will recognize the parallels with the Obamacare case from two years ago. There too, Chief Justice Roberts joined the liberal wing of the Court to imaginatively rewrite a federal law — the Affordable Care Act — to save it from constitutional challenge. But the Chief Justice need not have feared addressing the Treaty Clause, just as he need not have saved Obamacare from the Constitution. Limiting Missouri v. Holland and the treaty power would not have spelled the end of Washington’s considerable powers. Congress can still to resort to its existing, and quite substantial, federal powers to cajole the states through funding incentives or political persuasion. But Congress and the President cannot avoid democratic accountability and their constitutional responsibilities by delegating power to international agreements and organizations.
Supporters of Missouri’s expansive vision of the treaty power respond with several unconvincing arguments. First, they argue that when two-thirds of the Senate approve a treaty, the states have consented to any expansion of federal powers at their expense. But the Court has long dispensed with the idea that the Senate is the sole safeguard for federalism, and has consistently held that the judiciary has a duty to maintain the Constitution’s balance of federal and state authority.
Second, Missouri’s defenders argue that treaties are generally “self-executing” and can immediately override inconsistent state law. A limit, therefore, on Congress’s power to carry out a treaty is pointless. But this argument ignores the fact that many key treaties (including human rights treaties) are almost always found to be non-self-executing by courts or by the Senate upon approval. The CWC itself has no direct effect in U.S. law and required congressional action to give it domestic legal effect. Thus, even if a treaty could invade state power without federalism constraints, the current practice of the Senate to make most complex treaties non-self-executing means that the scope of Congress’s implementation power is crucial. The rise of new and ambitious treaties regulating domestic affairs will sometimes pose a difficult challenge for the U.S. constitutional system. Many supporters of these new agreements will invoke the need to carry out international commitments as an excuse to ignore the U.S. Constitution’s protections for the states and, ultimately, American sovereignty. By failing to place constitutional limits on the federal prosecution of a vengeful wife, the Court missed a grand opportunity to take a clear stand in favor of the Framers’ Constitution of limited federal powers and a vibrant democratic role for the states in the age of globalization.
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