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New Supreme Court Ruling Misses the Mark

Published in Blog on July 17, 2017 by Convention Of States Project

Yesterday, the Supreme Court released its opinion in Bond v. United States. The case involved a woman named Carol Bond, who put harmful chemicals on the doorknobs of her “best friend” when she found out her friend was pregnant through an affair with Bond’s husband.

The federal government charged the woman with a criminal violation of the law Congress passed to implement the Chemical Weapons Treaty—which the Senate has ratified.

Normally, cases like this are simple crimes and Congress has no power to punish simple crimes. That is the sole authority of the states.

The core legal issue was how much legislative power Congress acquires through treaties.

The Obama Administration argued for a broad view of the power of Congress to legislate when it was implementing a treaty.

I filed an amicus brief in the case on behalf of the Home School Legal Defense Association. I argued that there was a general overlay of federalism that curtails the treaty power. I specifically cited an arson case called Jones v. United States, where a person was charged with arson under a law allegedly authorized by the Commerce Clause. Jones held that unless there was an interstate commerce aspect to the arson (burning a train station, for example), that this was only a state crime and not a federal crime.

By analogy, I argued that any law implementing a treaty on Chemical Weapons and warfare should require proof of an international element of the crime. HSLDA’s brief was the only amicus brief for Mrs. Bond that made this federalism argument based on the Jones case.

The majority ruled that the law should not be interpreted to reach Mrs. Bonds’ behavior due to the principles of federalism. The majority specifically cited the Jones case as its principal basis for this conclusion. The Court said that unless Congress clearly asserted it was seeking to invade the authority of the states, the Court should not assume it was doing so.

While there were clearly some similarities between our brief and the final decision, there is one important distinction. We wanted the Court to say federalism meant Congress COULD NOT invade the power of the states. The Court simply said they would interpret the law to conclude Congress DID not invade the power of the states. The COULD NOT question is reserved for a future case.

Such a result is not a victory or a real protection for our principles of self-government.

We need more than a holding that Congress DID NOT violate federalism. We need a clear holding that Congress CANNOT violate federalism and the authority of the states through the use of treaties. Americans, not the UN, should make the law for America.

Fortunately, a Convention of States gives us a way to keep international treaties from destroying the principles of federalism or the authority of the states. A constitutional amendment like the one I describe here could ensure, once and for all, that only Americans make laws for America.

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