Now Bond is back, arguing the Court should either construe the statute not to cover her crime (thus avoiding the constitutional issue), or take a big bite out of the Treaty Power. They argue that Congress couldn't have made Bond's crime a federal crime without the treaty, since—like possessing guns in schools—it was just ordinary state-level crime. “If section 229 really extended to [Bond’s crime], then it clearly would exceed Congress’ limited and enumerated powers,” her brief argues. “[T]he government’s argument would allow the agreement of the President, the Senate, and a foreign nation to render the Framers’ careful process of enumerating Congress’ limited powers for naught.”
Pretty scary, right?
But it’s even worse than that, according to a brief filed by the Cato Institute, the libertarian think-tank that often serves as Court conservatives’ idea incubator. To Cato, the long-standing doctrine of the Treaty Power “implies, insidiously, that the President and the Senate can increase their own power by treaty.” Beyond that, “it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.”
The brief's tone echoes that of the so-called Anti-Federalists who fought the Constitution in 1787-88—opposed it not least because they feared that "insidious" elites would conspire with foreigners to rob the states and the people of their liberties. This conspiracy among a president, senators, and a foreign leader—how likely is it? Do you really lie awake worrying that the president and 67 senators will secretly conspire with President Xi Jinping of China (the leading producer of broccoli) to spring the Cruciform Vegetables Treaty, requiring three helpings a day, on an unsuspecting nation?
Compared to this scenario, the idea that bike-share programs are a U.N. plot is positively sober.
One can feel a bit of impatience with the federal prosecutor who decided use of chemical weapons was the right charge to bring against a troubled woman. (Perhaps we might feel differently if she had used toxic chemicals to attack a school or a government building.) But that impatience shouldn’t blind us to the danger of what the Court is being asked to do.
Many things about the Constitution are ambiguous, but the Framers clearly centralized all power over foreign relations. States are forbidden to negotiate with or sign agreements with foreign governments; only the government as a whole—that is, the president and the Senate together—can bind the nation.
The talk of “the Framers’ careful process of enumerating Congress’ limited powers” is misleading. The Treaty Power in fact is a carefully enumerated power—and it is not a power of the mere Congress for which this Court feels such disdain, but of the nation as a whole, acting through its two political branches. Missouri v. Holland, the leading case on the Treaty Power, upheld a federal law regulating the hunting of migratory birds within states, passed by Congress to honor a treaty with Britain, which then ruled Canada. In a 7-2 opinion, Justice Oliver Wendell Holmes wrote:
[w]e do not mean to imply that there are no qualifications to the treaty-making power; but they must be ascertained in a different way [than an argument that regulating birds was beyond Congress’ powers]. It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, “a power which must belong to and somewhere reside in every civilized government” is not to be found.
No one believes there are “no limits” to the power of the government to enter into treaties and enforce them. The Constitution’s text provides them. The president and Senate couldn’t, for example, agree to impose dictatorships on the states, or to carve new states out of existing ones, or to repeal the Bill of Rights. But textual limits are one thing; what Holmes ridiculed as “some invisible radiation from the general terms of the Tenth Amendment,” or some paranoid suspicion of foreign powers, are another. Even where “traditional” areas of state authority are at stake, the burden should be on those who claim that some national act is “beyond” the Treaty Power.
Bond’s fate is of little concern to anyone involved. If there is any reasonable way to let her live out her life in peace, the Court should take it. But even this conservative Court might, I think, hesitate before using these odd facts to enfeeble a power that Washington, Madison, and Hamilton sought so urgently. The day may come, and soon, when we need to appear before the world as one nation, not 50—clothed in the dignity of a “civilized government,” not “in a ridiculous point of view.”