In Bond Oral Argument, the Federal Government Once Again Refuses to Admit there are any Structural Limits to Federal Power

Earlier this week, the Supreme Court heard oral argument in Bond v. United States, an important case on the issue of whether the Constitution allows the federal government to use international treaties to give Congress authority over issues that otherwise would be beyond the scope of federal power. Bond – which has already been to the Supreme Court once before – arose from a seemingly ridiculous case where federal prosecutors decided to charge a woman who had tried to injure a romantic rival by smearing a dangerous chemical on a doorknob the latter was likely to touch, with violating the Chemical Weapons Convention. The incredibly broad federal statute implementing the CWC bans the use or possession of “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals” (though there is an exemption for the use of such chemicals for a “peaceful purpose,” which was narrowly construed by the court of appeals).

As my colleague Michael Greve points out, during the oral argument Solicitor General Donald Verrilli repeated a mistake that has gotten the federal government into trouble in several previous federalism cases, including United States v. Lopez and NFIB v. Sebelius: refusing to admit that there are any structural limits to the scope of federal power. Throughout the argument, he consistently refused to admit that the courts could enforce any structural constraints on the range of issues that might be covered by a treaty. While he noted there “might” be an “outer limit” to the treaty power, he refused to state what it was, or even admit that it necessarily existed at all. This extreme position drew skepticism even from liberal Justice Stephen Breyer, a longtime supporter of broad theories of federal power:

JUSTICE BREYER: We either have to draw lines or we have to say, well, this [law] encompasses the poison potato, the poisoned goldfish, the small boy with the candle, the–for performance-enhancing drugs. I would say judges are here to draw lines, and between throwing all those things into it or drawing lines, it’s better to draw a few lines.

GENERAL VERRILLI: We can –we can talk about hypotheticals, but the key point about them is that they’re hypothetical.

JUSTICE BREYER: No, no. These are real cases,…..

Breyer was also skeptical of the federal government’s claim that an unlimited treaty power is necessary to protect national security interests. Other justices were also critical of the federal government’s position, including key swing voter Anthony Kennedy, who emphasized that Verrilli’s refusal to admit any limits would allow even a treaty that gives the president the power to override federalism limitations at will.

There was also this humorous, but pointed exchange between Verrilli and Justice Samuel Alito:

JUSTICE ALITO: This statute has an enormous –an enormous breadth, anything that can cause death or injury to a person or an animal. Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?

(Laughter.)

GENERAL VERRILLI: Your Honor, I understand the point.

JUSTICE ALITO: On Halloween we gave them chocolate bars. Chocolate is poison to dogs, so it’s a toxic chemical under the chemical weapons—

GENERAL VERRILLI: I think de minimis non curat lex would take care of that, but this –there is serious –this is–

JUSTICE BREYER: There’s chocolate all over the place.

In reality, chocolate is only dangerous to dogs if they consume it in fairly large quantities. Just a few months ago, our golden retriever stole and ate six chocolate chip cookies, but the vet said she didn’t need to be treated, because it wasn’t enough to cause her harm. Nonetheless, the broad scope of the CWC implementation statute highlights the risks that an unlimited treaty power poses to federalism. Hypothetical scenarios aside, the prosecution of Mrs. Bond is itself an absurd example of federal overreach – creating a federal case out of a garden variety love triangle where one woman apparently sought to take revenge on a rival who had slept with her husband.

Verrilli’s oral argument travails don’t necessarily mean that the United States will lose the case. But if they manage to prevail, it will have to be under some theory that avoids giving the federal government unconstrained authority to undermine federalism through the treaty power. If Breyer and Kennedy are unwilling to bite that bullet, it’s highly unlikely there will be five other justices who are.

Earlier this year, NYU law professor Rick Pildes, debated co-bloggers Nick Rosenkranz, Eugene Kontorovich, and myself on the proper scope of the treaty power here at the VC. For those who may be interested, the debate was reprinted in full by the Green Bag Journal of Law here. I summarized my own take on the issue in this post:

As Federalist 64 puts it, “a treaty is only another name for a bargain.” A person who makes a contract only has the right to make commitments with respect to decision-making authority that he already possesses. For example, I cannot sign a binding contract committing a third party to teach constitutional law at George Mason University, unless he has specifically authorized me to do so. Similarly, the federal government cannot sign an international contract (i.e. – a treaty) making commitments on issues outside the scope of its other powers. This presumption could have been overridden by a specific provision of the Constitution authorizing the president or Congress to sign and enforce treaties on subjects that are otherwise outside the scope of their power. But there is no such provision. The Necessary and Proper Clause does not give such authority to Congress for reasons outlined by co-blogger Nick Rosenkranz in his important article on the subject.

One could argue that Article VI of the Constitution, which makes treaties “the supreme law of the land” authorizes the making of treaties that go beyond the scope of structural limits on federal power. But Article VI only gives that status to “treaties made, or which shall be made, under the authority of the United States” (emphasis added). A treaty covering issues outside the scope of federal power goes beyond “the authority of the United States,” and is therefore not part of the “supreme law of the land.”

In this later post, I addressed claims that a structurally unlimited treaty power is necessary to protect vital national interests.

UPDATE: Here is another interesting passage where Breyer expresses skepticism about the existence of an unconstrained treaty power, though note that he couches it in terms of what the Framers intended, and Breyer is not an originalist:

Given the power… to have some self-executing treaties, in principle your position constitutionally would allow the President and the Senate, not the House, to do anything through a treaty that is not specifically within the prohibitions of the rights protections of the Constitution…. And I doubt that in that document the Framers intended to allow the President and the Senate to do anything.