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Vinegar in a Fish Bowl

Treaties, Federal Powers and the 10th Amendment

Today, the US Supreme Court will hear the case of Bond vs. United States. At first glance, this would appear to be an innocuous case out of Pennsylvania involving a distraught wife who discovered her husband was cheating on her. Some of the facts are comical as if out of a Looney Tunes cartoon starring Wile E. Coyote. However, the ramifications of this case are large, especially as concerns state’s rights vis-a-vis the Tenth Amendment. This case was relisted eight times before they granted review. Generally, this indicates some internal debate when considering petitions (or possibly waiting for another similar case). Likely, there were four votes to take the case and those four were fishing for a fifth vote to tip the scales in the eventual outcome.

In fact, two years ago Carol Anne Bond won a unanimous decision before the Supreme Court when they allowed her appeal in the Third Circuit in Philadelphia to proceed. Then, the issue was whether she as an individual can make a 10th Amendment claim instead of the traditional route- a state making that claim. Upon remand, the Third Circuit rejected her 10th Amendment claims and allowed her conviction to stand. Her appeal now before the Supreme Court is whether the Third Circuit misinterpreted a 93 year old decision and thus expanded the power of the federal government and intruded in an area normally reserved to the states.

Carol Bond, upon finding out about her husband’s lover, stole a chemical compound from where she worked and placed some in that woman’s car, on her door knobs and he mail box. After being rebuffed by local law enforcement, she contacted postal authorities who discovered that Bond was placing the chemical in the mail box in a crude attempt to poison the woman. Normally, this would be a simple case of possibly attempted murder or, at the very least, assault and battery. Both these offenses are usually left to the state to prosecute. However, the federal prosecutor in Philadelphia brought federal charges against her for which was convicted and sentenced to six years in jail.

At issue is the constitutionality of the law under which she was prosecuted. In 1997, the United States signed an international treaty banning the manufacture, stockpiling and use of chemical weapons. At the time, there was considered debate in the Senate over several sessions, but it finally received the required two-thirds majority ratification. As part of that treaty, all signatories were required to pass enabling legislation which would put teeth into the treaty’s requirements. The treaty defined a chemical as any substance that could kill or incapacitate a human or animal. The Senate Foreign Relations recommended ratification given at least 15 recommendations for the enabling legislation.

The story now gets a little tricky. Leaving aside the fact that formal treaties are almost a thing of the past, most treaties once signed and ratified, require enabling legislation. Those that do not are called “self-executing” treaties. These treaties then become the law of the land. Most of them involve extradition or tax agreements between the US and foreign countries. But, the 1997 chemical weapons treaty was not self-executing. Adopting the treaty’s definition of a chemical weapon, Congress also made possession of such a chemical compound a federal crime. It is this aspect of the law under which Bond was prosecuted.

In her original case two years ago when Bond prevailed, it was Justice Alito who sort of set up the drama in this case when he asked if he put vinegar in a neighbor’s fish bowl, could he be prosecuted. The government’s answer was evasive and ambiguous, but the gist was that basically it could qualify as a crime.

In rejecting Bond’s appeal, the Third Circuit relied on a 93-year-old decision, Missouri vs. Holland. Specifically, they relied on a single line from that decision which said that, to paraphrase, the treaty power of the federal government is unquestioned and absolute and therefore any law passed to put into effect that treaty is likewise unquestioned and constitutional. At issue then was a treaty protecting migratory birds. Obviously, there were international implications in that case; birds fly over international boundary lines and state hunting laws were affecting the migratory habits and pathways of these birds. In the present case, Bond’s actions have no such international ramifications. In fact, her lawyers claim that this interpretation of Missouri v. Holland gives almost unlimited power to the federal government to pass laws to carry out treaties thus enhancing their powers. In effect, her lawyers argue, Congress is federalizing state laws through this method. They urged the Court to take the case to put a curb on Congress’ powers since it clearly violates their enumerated powers in Article I, Section 8. Secondly, they argue that the crime could easily be prosecuted by state or local officials.

The federal government argues that although they have the power to pass these laws in furtherance of a treaty, should they not prevail on those grounds, they have the power under either the Commerce Clause of the Necessary and Proper Clause. If they have any claim, however, their best bet would be under the Commerce Clause which may prove an out for the Supreme Court. But, the lower court record is not based on the Commerce Clause. Today, the government insists that because they did not base their rationale for the law on that Clause, they do not now forfeit that argument. Regardless, the question before the Court involves the Treaty Clause and legislation that flows from treaties.

Under the law, there is are exemptions. For example, the production and possession is legal if used for peaceful purposes like research. Bond’s possession does not fall into these categories; she obtained the chemicals to poison someone. But, the law was enacted to further an international treaty regarding chemical warfare. In effect, their prosecution elevated Carol Bond from a two-bit, comical attempted murderer into a chemical warrior. Without recourse to the exemption, there is little wiggle room for the Supreme Court to avoid the larger federalism questions.

There are some previous cases in this area. For example, in Printz vs. New York, the Court ruled that the federal government cannot interfere in a state’s legislative process by compelling them to enact and enforce a federal regulatory program. In the Obamacare Medicaid case, similar sentiments were expressed. Also, they have previously ruled that Congress cannot resort to the all-encompassing Necessary and Proper Clause if they fail to recognize the limitations on their powers via the principle of federalism. That is, Congress cannot go about passing laws willy-nilly with little attention to or respect for state laws, especially when those federal laws impinge upon areas traditionally reserved to the states. Homicide or attempted homicide laws where the crime falls solely within a state’s borders- as here- certainly fall in that category.

Carol Anne Bond is an obvious bad choice for a champion of state’s rights and the increasingly encroaching federal government. But, this case reopens an issue that almost torpedoed the Constitutional convention and certainly complicated the ratification process which was somewhat corrected with the Tenth Amendment. It is also an issue that partially led to a bloody Civil War. And one would be hard-pressed to find any decade in American history where the issue has not been controversial.

The bottom line is that the Third Circuit’s interpretation of Missouri vs. Holland implies that the powers of the Senate can be greatly expanded in the name of effecting a treaty. There is good historical evidence that this trend was never condoned by our Founders. In the name of changing international norms and treaties recognizing these norms, the framework of the Constitution and our federalist form of government- shared sovereignty between the federal and state governments- was never to be made subordinate to these norms. Thus, it would seem likely that the law in question is inconsistent not only with the Treaty Clause, but also with the Necessary and Proper Clause and the Tenth Amendment. Chief Justice John Marshall many years ago in Marbury vs. Madison asserted: “…the powers of the legislature are fixed.” Congress cannot assert powers where none exist in the Constitution. No matter how noble the cause- eliminating chemical weapons is a noble cause- the means of doing so cannot upset the balance of power between the state and federal governments. If allowed unchecked, the President and the Senate are simply left to increase their law-making powers in areas normally reserved to the states. It is conceivable that the President and foreign leaders can neuter state laws by their mere signature on a treaty or agreements which is the preferred mode today. Our Founders required a supermajority to ratify a treaty because they feared foreign entanglements. They saw that they often led nations into wars. What is to stop a President from engaging in foreign entanglements merely to enhance their domestic powers?

If one does not think this is possible, then you are living with your head in the sand. Today, the United Nations is pushing an international agreement to control small arms trafficking. This treaty, if signed by the United States and ratified, has the potential to render our Second Amendment moot. Certainly, controlling the international spread of arms is a worthy goal, but it also has the potential to seriously impact upon our Second Amendment rights. Another area of concern is climate change agreements where, if officially ratified by the Senate, could through the enabling legislation seriously interfere in the affairs and economies of certain states. There is a growing international consensus to do away with the death penalty as a human rights abuse. Again, if ratified it would interfere with the rights of states to ascribe punishments to criminals. In effect, through the treaty power asserted by the federal government in this case, there would be nothing to stop the government from making claims to pass laws in areas where our Founders never intended.

This decision, when announced, will be a major one with respect to federalism and international law. A ruling for the government could potentially open the door to the “transnationalization” of our laws which would simply castrate the powers of states. More ominously, we would all be potentially guilty of chemical warfare by virtue of a can of Dran-O under our sinks. It is possible that the Court will rule the law as written is overly-broad and strike it down. As a result, they could possibly avoid the larger picture for now while a bumbling, jilted wife goes free on the federal charges. Otherwise, we are all chemical warriors.

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