American judges, like American politics, often seem only dimly aware of the rest of the world—what Justice Scalia once dismissed as "foreign moods, fads, or fashions."
Our Supreme Court’s priorities are entirely domestic—a bitter quarrel with Congress in particular and with the federal government in general. And to judge by the tone of an oral argument held Tuesday, the conservative justices think of foreigners chiefly as potential enemies in that domestic struggle. Justice Scalia, for example, worried that a treaty would surreptitiously impose gay marriage on the states. Justice Samuel A. Alito asked whether some treaty somewhere would reduce gun rights. Chief Justice John Roberts asked whether the United Nations could require the United States to give more power to Congress. Justice Anthony Kennedy worried that some treaty might give the president the power "to set aside any State law that in his view contravenes a national interest."
These four conservatives were propounding these broccoli-style horribles (call them "florets") in their eagerness to take the Treaty Power, and that pesky president, and the scheming Senate, down a peg. Remarkably enough, they seemed disposed to do this in a case where no such major doctrinal shift should be needed. Bond v. United States involves a criminal prosecution so lopsided that even the internationally minded Breyer found it ludicrous. The Court could—as Breyer himself suggested—make the problem vanish by reading a federal statute slightly more narrowly than the court below. But easy cases make bad law: that solution—which strikes me as clearly right, and would leave the Treaty Power untouched—seemed to command no other vote than Breyer’s own.
As readers of this site know, Bond involves federal prosecution of a jealous wife who smeared caustic chemicals on the house, car, and mailbox of her husband's pregnant lover. Local police conducted a half-hearted investigation, then suggested the victim call the feds. The U.S. Postal Service had jurisdiction—home mailboxes are federal property—and their surveillance cameras nabbed Carol Anne Bond in mid-smear. A federal grand jury indicted Bond for theft of the mail—and for violation of the United Nations Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons as implemented by the U.S. Chemical Weapons Convention Implementation Act of 1998, which (as required by the Convention) makes it a domestic crime to "use . . . a chemical weapon," defined as "any toxic chemical," for any non-"peaceful" purpose.
Conservatives have seized on the seeming absurdity of the prosecution to mount an attack on the Treaty Power. If they succeed, it may have serious implications for other kinds of treaties—since, as the chief justice himself pointed out, treaties today frequently concern "the abduction of children" and "human rights." Environmental treaties, too, might be at stake, since they may reach into states and regulate such things as wetlands use or mining.
Bond’s counsel, Paul Clement, in essence argued for a strict limit on Congress’s power to implement treaties. Congress would be unable to do anything that would supplant the states’ "police power"; instead, it would be limited to urging the states to pass legislation implementing the treaty. "If we need that to discharge our treaty obligations, the States are absolutely ready and able to shoulder that task," he said. Clement’s proposed rule would require implementing statutes to contain a "jurisdictional element" that would permit courts to decide whether a given case "really" implicates the treaty.
Solicitor General Donald Verrilli—who had to defend the Treaty Power by defending the farcical prosecution of a crazed lovesick spouse—faced hostile question after question. Roberts, Scalia, Kennedy, and Alito competed in creating imaginary hypotheticals in which presidents and foreign princes conspired to circumvent decisions of the Court. Verrilli stoutly reminded them that the Chemical Weapons Treaty is at the forefront of American foreign policy at this very moment, as is the phrase "peaceful uses": "One of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful uses and warlike uses," he said. "And this phrase, ‘peaceful uses’ is not only in the Chemical Weapons Convention, it's in the Nuclear Nonproliferation Treaty, and we're engaged in very sensitive negotiations [with Iran, though he did not say so] right now under the Nuclear Nonproliferation Treaty trying to draw exactly the same line." Judicial involvement in this process, he said, "is going to undermine the ability of our negotiators" to reach agreements.
Most striking in this case is that "original intent," or "original understanding," so clearly supports the government. Verrilli told the Court,
With respect to the exercise of the treaty power, the Framers made a judgment that this power was going to be exclusively in the hands of the national government. And it needed to be exclusively in the hands of the national government in order to ensure that the United States could be a full sovereign on the world stage. Now, it is true that the subject matter of treaties is different now than it was at the time of the founding, but the Framers understood that. They were careful not to impose subject matter limitations on the treaty power because they were wise enough to know they could not foresee what might be important for the United States to be able to negotiate about on a world stage in order to participate fully as a sovereign.
The Treaty Power arose in large part because state governments were refusing to honor the Jay Treaty with England; as I review materials from the Founding Era, I see no trace of a desire to protect the "traditional powers" of the states when the needs of foreign policy were at stake. The "police power/state implementation" approach is straight out of the Articles of Confederation.
Earlier this year, I took some heat for saying that, in a Court with a conservative majority, originalism is dead. It was a philosophy of judicial restraint; in this case it would find little warrant for the Court to create (out of what Justice Elena Kagan called "invisible radiations . . . penumbras and emanations of the Constitution") a "states’ rights" limitation on a sovereign power given by the Constitution to the federal government and explicitly denied to the states. The prospects after the Bond argument are for a decision that would prove me right.