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The Supreme Court case Bond vs. United States will determine whether Congress can pass laws otherwise outside its Constitutional authority through the use of treaties. Writing in Slate, University of Chicago law professor Eric Posner posits that fears about the federal government abusing new powers are overblown. However, considering the federal laws recent narrowly avoided treaties would have implemented, including a law which would have outlawed homeschooling and impact Americans’ Second Amendment rights, it would be difficult to overstate the importance of such a ruling.
Posner supports this expansion of powers because he believes the “possibility that the government will abuse its powers" is "merely theoretical.” However, an even-cursory reading of history reveals that any expectation that federal agencies won’t abuse their powers is totally disconnected from reality. From NSA spying to DEA abuses of administrative subpoenas to IRS audits of the current administration’s political opponents, there is no credible way to claim government abuses of power will stay in the realm of theory.
The Supreme Court case has three main players. The first is Carol Bond, who attempted to poison her husband’s mistress with toxic chemicals. The second is the U.S. government, which took the case from Philadelphia police department and indicted Bond under a federal statute that makes it illegal to use toxic chemicals to harm people. The third is the Chemical Weapons Convention. The federal law Bond violated was implemented in order to fulfill US obligations under this the UN treaty.
Bond’s argument is that the desire to implement a treaty alone does not, under the Constitution, give the government the ability to implement federal laws.
Libertarian critics of national government power, like the Cato Institute, which submitted an amicus brief, worry that if Bond loses this case, the United States could enter a treaty with Suriname or Lesotho to abolish the death penalty or home schooling. Then Congress could pass an implementing statute that shreds state laws on the death penalty and home schooling, which (according to the libertarians) Congress is otherwise not allowed to do.
Posner first doubts that the United States would enter into those kinds of treaties, and then doubts whether federal agencies would use abuse the legislative powers implementing the treaties would provide.
Understand that if Bond loses, that leaves only one option open for preventing federal law from trampling state law on matters which would not be federal for any reason other than a treaty. Under this scenario, Congress can circumvent state law in any way, as long as doing so helps implement a treaty. This means trusting Congress to refuse to enter into treaties whose implementation would require new federal laws on non-federal issues.
How well-placed is that trust? Posner himself uses the examples of treaties which would shred state laws on the death penalty and home schooling if implemented. How interesting that earlier this year Senate Democrats attempted to resurrect a narrowly defeated UN treaty which would, if implemented, effectively outlaw homeschooling at the federal level.
Homeschoolers’ fate would rest in the hands of a legislative body which defeated the treaty by only five votes the last time around.
Giving the federal government vast new powers while relying on Congress to keep them accountable is a model which has been tried in the past. The most notable recent example of this folly is the NSA spying thrust into the general consciousness by former IT contractor Edward Snowden.
Snowden revealed the existence of government spying programs which collect far more information on American citizens than was previously known (or is likely legal). But he also revealed that Congress is routinely denied information or lied to about who is getting spied on and why. For instance, the ACLU and Amnesty International sued the government because they suspected they were being wiretapped without a warrant. The suit was unsuccessful: Since they could not find out whether they were being wiretapped, they could not prove harm.
What’s wrong with refusing to implement parts of treaties which trump state law on non-federal issues? Putting aside the question of whose interpretation of the Constitution is correct, Cato’s or Posner’s, expanding federal power in this way just doesn’t make sense in a straight cost-benefit analysis.
There’s also the risk that special interests who cannot get unconstitutional laws passed will attempt to insert language into treaties which would then make these laws constitutional through that mechanism. In addition, there’s the risk that currently politically infeasible treaties, like those which ban guns and homeschooling, would get more support once they have the power to trump current Constitutional limits on federal lawmaking.
There is simply no reason to trust Congress to respect state law when the body regularly narrowly rejects UN treaties whose implementation would trump state law on non-federal matters. The US should absolutely be required to amend or refuse to implement treaties whose implementation would violate federalism. In the example of Bond, there was absolutely no need to prosecute Bond using that particular federal statute, as her actions also violated state law. The example shows that increasing the number of federal statutes on the books in this way is neither necessary nor helpful.