Since the Treaty Power remains intact, should we worry about the Grab?
The Framers made approving a treaty difficult. Both the president and two-thirds of the Senate must agree on it. They relied on these two parts of the federal government to keep each other honest and thus preserve the Constitution. So 67 senators or so (depending on the number voting), after a public debate, would have to agree that Latvian-U.S. relations should govern guns in American high schools.
Not, as Eliza Doolittle would say, bloody likely.
You’re not satisfied? Then wait, there’s more. Both the House and the Senate would then have to pass a separate statute implementing the Grab Pact. Eliza says that’s not very likely either.
Bond, as I have explained extensively, concerned the Chemical Weapons Convention Implementation Act of 1998, in which Congress made it a crime to use a “chemical weapon,” meaning, in essence any toxic chemical used as a weapon, within the United States. The statute implemented the international Chemical Weapons Convention of 1997, which required all nations signing it to outlaw the weapons domestically.
Flash forward to 2007. Post-9/11 anti-terrorist fervor is strong. Carol Anne Bond smears dangerous chemicals around the home of the woman carrying Bond’s husband’s child. She unwisely targets a mailbox, triggering federal jurisdiction. An overenthusiastic federal prosecutor charges Bond under the act; conviction carries a sentence of “any term of years” (and execution, if the victim had died instead of suffering a mild burn on the thumb).
It was a sad case and a silly prosecution. The six-justice majority made it go away by construing the statute not to apply to “purely local crimes.” That was a perfectly ordinary piece of statutory construction, but it disappointed the right. Scalia’s Latvian scenario was as silly as the prosecution, but behind it lurks a conservative fear that—to quote an amicus brief written for the Cato Institute by Georgetown Law Professor Nicholas Quinn Rosenkranz—since the Court didn’t make itself the arbiter of “proper” treaties, “Congress’s legislative powers are not merely somewhat expandable by treaty; they are expandable virtually without limit.”
Remember that the government did not argue that the Treaty Power overrules the Bill of Rights or any other textual prohibition in the Constitution. In a 1957 case called Reid v. Covert, Justice Hugo Black wrote, “There is nothing in [the Supremacy Clause] which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution.” That’s been pretty generally accepted since.
So the issue in Bond is whether there’s some sort of unwritten law—what Kagan called during oral argument “invisible radiations that you think come from the structure of the Constitution”—that federal courts can invalidate any treaty they think goes “too far.”