How The Roberts Court Could Declare War On International Treaties

Republican Superlawyer Paul Clement

The Roberts Court does not much care for America’s obligations to other nations. Five years ago, in a case argued by future Tea Party Sen. Ted Cruz (R-TX), the Court held that Texas could simply ignore an international treaty ensuring that foreign nationals arrested in the United States are informed of their right “to request assistance from the consul of [their own state.] Even North Korea honored this treaty when two American journalists were held captive by that country for five months in 2009.

On Friday, the Supreme Court announced it would hear a case that could further undermine whether other nations can trust America’s word when we agree to certain obligations under a treaty.

On its surface, Bond v. United States is a case about a petty criminal who tried to poison her husband’s mistress. When Carol Anne Bond learned her neighbor was pregnant with Bond’s husband’s baby, she obtained several highly toxic chemicals from her job with a chemical manufacturing company, and then applied those chemicals to the neighbor’s mailbox, car door handles, and house doorknob. The mistress next door suffered chemical burns as a result.

As Bond soon discovered, however, the United States is a party to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction. In order to ensure that America meets its obligations under this treaty, Congress passed a law that makes it a criminal act “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon” for a non-peaceful purpose. So Bond’s petty act of revenge quickly became a federal case.

As a general rule, the Constitution does not permit Congress to criminalize murder or assault or other non-economic crimes of violence, except in certain limited circumstances. But that does not mean that the chemical weapons law Bond ran afoul of is unconstitutional. Article II of the Constitution provides that the President “shall have power, by and with the advice and consent of the Senate, to make treaties;” and Article I of the Constitution permits Congress “[t]o make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” So the president signed onto a valid treaty, the Chemical Weapons Convention, which was then ratified by the Senate. Congress passed a law “carrying into execution” this valid treaty. As a textual matter, the constitutionality of Bond’s conviction is not a difficult case.

But, of course, it is now in front of the same Court that recently imposed implausible new limits on Congress’ power to carry into execution the federal government’s lawful authority in the challenge to the Affordable Care Act — ignoring a recent opinion by none other that conservative Justice Antonin Scalia in order to do so. The justices that brought us that decision, not to mention the Court’s election-buying decision in Citizens United and numerous other decisions ignoring the Constitution’s text and longstanding precedent, cannot exactly be trusted to follow the law in Bond either.

It’s worth noting that Bond is represented by Republican superlawyer Paul Clement, the same attorney behind the challenge to health care and the same lawyer that’s now charged the American taxpayer as much as $3 million to defend the unconstitutional Defense of Marriage Act. It is highly doubtful that Ms. Bond can afford Clement’s legal fees on her own, suggesting that she has a wealthy benefactor with a deep ideological interest in undermining America’s ability to keep its treaty obligations — or in continuing the project Clement began in the health care case of dismantling America’s ability to solve national problems.