Tag: treaties

The President Can’t Increase Congress’s Power Simply by Signing a Treaty

A lost episode of Jerry Springer found its way into the Supreme Court’s 2010-11 term in the case of United States v. Bond. Mrs. Bond, upset by the pregnancy that resulted from an affair between her husband and her erstwhile best friend, decided to take revenge. A trained microbiologist working at a chemical manufacturer, Mrs. Bond tried to poison her husband’s mistress by dusting her door knobs, mailbox, and car handles with dangerous, possibly lethal chemicals.

Upon being caught by (federal) postal inspectors, Mrs. Bond was charged with violating the law Congress passed to implement an international chemical weapons treaty. (There are no generally applicable federal attempted murder statutes, so prosecutors had to get creative to remain in federal court.)

But if general criminal statutes are beyond Congress’s powers, as even the most ardent federal-power activist must acknowledge, how did Congress have the power to pass the law that ensnared Mrs. Bond? — who, whatever her character flaws, was not selling chemical weapons to terrorists (the treaty’s target). Mrs. Bond thus hoped to challenge her conviction by arguing that Congress did not have the power to pass the law in question.

The Third Circuit, however, ruled that she did not have standing — a legal doctrine defining who has the right to bring a claim — to challenge the law on federalism grounds. Cato filed a Supreme Court brief supporting Mrs. Bond’s position and arguing that it makes no sense to deny standing to someone challenging a law under which she is being prosecuted. The Court unanimously agreed and remanded the case back to the Third Circuit, to finally hear arguments over whether the statute is beyond congressional power.

Cato has now reentered the fray, in a brief authored by Georgetown law professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence. We again support Mrs. Bond’s claim that the law under which she was charged is beyond Congress’s enumerated powers. The main obstacle to this argument is the 1920 case Missouri v. Holland, a short and not completely clear opinion by Justice Oliver Wendell Holmes that has been interpreted to mean that Congress can expand its enumerated powers via the Treaty Clause.

In other words, even though Congress does not have the power to pass, for example, general criminal statutes, if Congress ratifies a treaty calling for such statutes, its power increases beyond constitutional limits. We argue that this is an astounding manner in which to interpret a Constitution that creates a federal government of limited powers. Not only would this mean that the Executive has the ability to expand congressional power by signing a treaty, but it would mean that foreign governments could change congressional power by abrogating a previously valid treaty — thus removing the constitutional authority from certain laws. We also point out how the most influential argument supporting Missouri v. Holland is based on a clear misreading of constitutional history and that the ruling is in deep tension with other cases.

On the treaty power, we’re in a constitutional quagmire that can only be escaped by limiting or overturning Missouri v. Holland.  The Third Circuit can’t itself overturn a Supreme Court decision, of course, but it follows our brief, it can at least limit its damage.

Egypt Crosses Critical Line in the Arab Sands, Labels Hezbollah ‘Terrorist’

The designation of Hezbollah as a terrorist group by Egypt highlights a fault line developing in the Middle East over relations with Israel and the United States.

On the one hand, there are those who favor negotiations to resolve the dispute between Israel and the Palestinians. These countries include, most prominently, Egypt and Jordan, which both have signed treaties with Israel. Saudi Arabia also has promoted a negotiated solution.

Iran and Hezbollah, on the other hand, have emphasized what they call “resistance,” which means the use of arms to wrest territory from Israel ‘s control. The admission by Hezbollah’s leader, Hassan Nasrallah, that one of the people Egypt arrested was supplying arms to Hamas on Hezbollah’s behalf indicates that Hezbollah’s “resistance” is not limited to Lebanese sovereign territory.

Although Egypt’s action is directed against Hezbollah (and, by extension, Iran), it also carries a warning for the United States and Israel. The “resistance” argument is gaining ground in the Middle East. If it is to be successfully countered, negotiations need to deliver something tangible for the Palestinians—and soon. Otherwise, the regional governments who favor negotiation will find their arguments undercut, which could not only jeopardize hopes for Middle East peace, but might also threaten their own stability.