Tag: Third Circuit

Once More Unto the Treaty-Power Breach

The Carol Anne Bond saga continues. Now in her second trip to the Supreme Court—and with Cato’s support for the fourth time—Bond is still hoping to avoid federal punishment stemming from her attempts to get back at her erstwhile best friend for having an affair with her husband.

Bond, a microbiologist, spread toxic chemicals on her friend’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement, however, a federal prosecutor reached into his bag of tricks and charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Yes, rather than being charged with attempted murder and the like, Bond is essentially accused of chemical warfare.

Bond challenged the federal government’s power to charge her with a crime, arguing that Congress lacks constitutional authority to pass general criminal statutes and cannot somehow acquire that authority through a treaty. Before a court could reach this issue, however, there was a question whether Bond could even make that argument under the Tenth Amendment, which reaffirms that any powers not delegated to Congress are reserved to the states or to the people. On Bond’s first trip to the Supreme Court, the Court unanimously accepted the argument, offered in an amicus brief by Cato and the Center for Constitutional Jurisprudence, that there’s no reason in constitutional structure or history that someone can’t use the Tenth Amendment to challenge the constitutionality of the statute under which she was convicted.

On remand to the Philadelphia-based U.S Court of Appeals for the Third Circuit, and now with standing to challenge that law, Bond raised the argument that Congress’s limited and enumerated powers cannot be increased by treaties. We again filed in that case in support of Bond. The Third Circuit disagreed, however—if reluctantly—based on one sentence written by Justice Oliver Wendell Holmes in the 1920 case of Missouri v. Holland, which has been interpreted to mean that treaties can indeed expand Congress’s powers. With Cato supporting her bid to return to the Supreme Court on that treaty power question, Bond’s case reached the high court.

Now, in a brief authored by professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence, the Atlantic Legal Foundation, and former attorney general Edwin Meese III—in what we hope will be our final filing in the case—we argue that a treaty cannot give Congress the constitutional authority to charge Bond. Allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers.

Not only would this mean that the president has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating previously valid treaties—thus removing the constitutional authority from certain laws. This perverse result makes Missouri v. Holland a doctrinal anomaly that the Court must either overrule or clarify. We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has been repeated without question.

Although Holland is nearly 100 years old, there is thus no reason to adhere to a precedent that is not only blatantly incorrect, but could severely threaten our system of government. We’re in a constitutional quagmire with respect to the treaty power, one that can only be escaped by limiting or overturning Missouri v. Holland.

The Supreme Court will hear oral arguments in Bond v. United States in October.

Of Course Defendants Can Challenge the Constitutionality of Laws Under Which They’re Prosecuted

Hard cases make bad law, the saying goes.  Well, a bizarre case that the Supreme Court decided unanimously today has set a good precedent for the enforcement of residual Tenth Amendment powers. 

As I described in December when Cato filed a brief in Bond v. United States:

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Our brief argued that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but also that lower courts are wrong in assuming that both the president’s power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution.  That is, many judges seem to erroneously think that treaties can give the federal government powers it doesn’t otherwise have under the Constitution.

The Court’s ruling today, in a tight opinion by Justice Kennedy, makes clear that individuals can indeed raise Tenth Amendment claims that the federal government has overstepped its enumerated powers.  The Court took no position on the merits of Bond’s constitutional argument – relating to the expansion of federal criminal law via the Treaty Power into areas that should be handled at the state and local levels – but this non-decision is in itself a positive development because it signals that the underlying issue is in dispute.

The Third Circuit is now charged with determining in the first instance whether the law implementing the chemical weapons treaty is “necessary and proper for carrying into execution” the Treaty Power, including whether it’s overbroad if it snares people like Bond.

Even if Bond loses on the merits in the Third Circuit and/or the Supreme Court, however, her case has confirmed the idea that someone directly and particularly harmed by a federal law can challenge that law’s constitutionality.  As Justice Ginsburg said in her concurrence,

a court has no “prudential” license todecline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. ….

In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U. S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact §229.  Her claim that it does not must be considered and decided on the merits.

For more on the proper scope of the Treaty Power, I recommend Georgetown law professor Nicholas Quinn Rosenkranz’s “Executing the Treaty Power.”

Update:

Josh Blackman parses Justice Kennedy’s opinion and shows how it tracks the approach that Randy Barnett and Cato have been taking in our Obamacare briefs.

A Bizarre Case That Could Make Some Good Law

Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.

Cato joined the Center for Constitutional Jurisprudence in filing a brief supporting Bond’s request. We argue not only that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but that lower courts’ assumption that both the power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution. This assumption is premised on a perfunctory acceptance of an overly broad interpretation of Missouri v. Holland, 252 U.S. 416 (1920). That reading of Missouri v. Holland, however, is contrary to precedent, has been undermined by subsequent Court decisions, and if allowed to stand, will seriously undermine the notion that the federal government is one of only limited, enumerated powers.

The Court’s recognition that the constitutional issues Bond raises warrant serious review would begin the process of reconsidering the meaning of Missouri v. Holland and its progeny. Beyond the obviously erroneous ruling on standing here, this case offers the opportunity to reinforce limits on the expansion of federal criminal law into areas that should be handled at the state and local levels.

Many thanks to Cato legal associate Trevor Burrus for his help with our brief, which you can read here.  The Court will be deciding early in the new year whether to hear the case.