Right-wing media are disappointed that the Supreme Court decided to rule narrowly in a domestic criminal case that nonetheless had big implications for the United States' standing in the global community, rejecting a conservative legal challenge to Congress' long-standing powers under the U.S. Constitution to enforce ratified international treaties.
The Supreme Court recently ruled in Bond v. United States, holding that federal prosecutors had overreached when they charged the defendant, Carol Anne Bond, with violating the Chemical Weapons Convention Implementation Act of 1988, a statute enacted by Congress to fulfill the international obligations of the United States. Local authorities in Bond's home state of Pennsylvania declined to prosecute her assault of her husband's mistress -- she had “spread harmful chemicals on [her] friend's car, mailbox and doorknob” -- because her activities didn't result in any injuries worse than a burnt thumb. Nevertheless, Bond was prosecuted in federal court for violating the international Convention on Chemical Weapons, a treaty that was ratified by the United States in 1997 and codified into federal law by Congress in 1998. Bond argued (in part) that her conviction should be overturned because Congress has no constitutional authority to enact legislation that would help implement ratified treaties like the Convention on Chemical Weapons. This extreme and ahistorical argument was concocted by the libertarian Cato Institute, and contradicts not only the Framers' clear intent to transcend the dysfunctional Articles of Confederation that hampered early America on the global stage, but also hundred-year-old precedent of the Supreme Court.
The Court ultimately avoided that result by reading the statute and reasonably concluding that Congress never intended a treaty guarding against the mass slaughter of modern warfare to be applied to what has been described as nothing more than a “sad soap opera” that nevertheless “caught the attention of a group of conservative lawyers, who saw in her shabby act of domestic vengeance a chance to further an agenda centuries in the making.” Writing for the unanimous Court, Chief Justice John Roberts held that federal prosecutors should not have gone after Bond because federal law “does not cover the unremarkable local offense at issue here.”
Right-wing media outlets like The Wall Street Journal and National Review Online were clearly upset that the Court refused to adopt the radical concurring opinions of conservative Justices Scalia, Thomas, and Alito. Scalia and Thomas, for their part, "uncritically embraced" the outlandish constitutional argument put forth by Cato that “Congress lacks any specific power to pass legislation necessary and proper to ensure that the United States abides by its treaty commitments.”
Without admitting the breathtaking scope of their support of the Cato arguments, which law professor Eric Posner warned “reads the Constitution the way an evangelical might read the Bible, or a kindergartener might read a board book,” NRO's writers were disappointed that Roberts didn't take the opportunity to disregard the Constitution's text and history in addition to rolling back modern precedent. They criticized Roberts for lacking "intestinal fortitude" and "very much wish[ed] that the constitutional principles set forth in Scalia's and Thomas's opinions were the settled understanding of the Court." A recent WSJ editorial agreed, calling Bond a “small victory, but a much larger missed legal opportunity.”
The larger missed opportunity was presented in three concurring opinions by Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Instead of rewriting the statute, the Court could have clarified, and limited, how much Congress can use the treaty power to expand its reach into more corners of American life.
Without better policing by the Court, wrote Justice Scalia, “the possibilities of what the Federal Government may accomplish, with the right treaty in hand, are endless and hardly farfetched.” He's right, and many liberal scholars have proposed precisely such an end run around the separation of powers on a variety of policy issues.
The Chief Justice prefers to avoid these larger questions if they divide the Court and he can pull together a bigger majority for a narrower judgment. The risk, especially in this case, is that he has left room for more unconstitutional Congressional mischief.
The idea that passing laws to help implement international treaties is “more unconstitutional Congressional mischief” is deeply flawed, widely criticized, and based on a wildly untenable reading of the Constitution. According to Garrett Epps of The Atlantic, the conservative justices' failed concurrences would constitute “radical new rules” for the treaty power, despite the fact that they conflict with the framers' original view of the use of treaties:
Making treaties is a sovereign power; an independent nation must have it. The framers of the Constitution gave that power to the president and two-thirds of the Senate. Article VI § 2 makes “treaties ... which shall be made under the authority of the United States” part of “the supreme law of the land,” explicitly trumping “any thing in the constitution or laws of any state to the contrary notwithstanding.” It nowhere hints that federal courts must approve these treaties, nor that states can block them.
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In a concurrence, Scalia was eager to chew a huge hole in the Treaty Power. His proposed rule: The federal government has the power to “make treaties” -- but has no power, by legislation or otherwise, to "implement treaties already made." Once a treaty is “made,” the federal government could recommend to the states various measures to enforce it, but that is it.
Thomas and Alito had radical new rules of their own to suggest. (Both joined part of Scalia's opinion.) Thomas would have used this case to hold that "[e]ven if a treaty may reach some local matters, it still must relate to intercourse with other nations." Alito suggested that “the treaty power is limited to agreements that address matters of legitimate international concern.”
Scalia's rule would in effect reduce the federal government into an ineffectual scold. Thomas' rule -- or Alito's -- would make federal courts the overseers of foreign relations. Under either, the government could sign any treaty that struck five justices as addressing “legitimate” international concerns.
None of these rules is even remotely suggested by the Constitution's text.
But right-wing media continue to shill for challenges to established federal law under the guise of “states' rights,” a defense of rejected legal arguments that seek to rewrite constitutional law.