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.