Atlantic Legal Files Brief in Case Concerning the Expansion of Domestic Government Jurisdiction Through Use of the Treaty Power


The Foundation, together with the Cato Institute and the Claremont Institute, filed a friend of the Court brief in the United States Supreme Court in an important case on Congresss treaty powers, arguing that Congresss powers are limited by the Constitution and may not be expanded by treaties.

Our amicus brief supports the petitioner in Bond v. United States, No 12-158. This case arises from Ms. Bonds clumsy and ultimately ineffective attempt to poison her good friend, who Ms. Bond discovered to be Bonds husbands lover.

Two years ago, the Supreme Court held that Bond had standing to challenge her criminal conviction for violating the Chemical Weapons Convention Implementation Act, Pub. L. No. 105-277, 112 Stat. 2681856, 22 U.S.C. 6701 as a violation of the Constitutions structural limits on federal authority. The Chemical Weapons Convention is an international arms-control agreement that is intended to address the proliferation of weapons of mass destruction by outlawing the production, stockpiling, and use of chemical weapons. It seems patently absurd for the federal government to prosecute a case arising from a wifes attempt to injure her husbands lover under a statute designed to implement a treaty banning weapons of mass destruction. This is the sort of case that local or state prosecutors handle.

On remand, the Third Circuit held on the merits that Bonds constitutional challenge was not well-founded because the basic limits on the federal governments power are not applicable to statutes that implement a valid treaty. Although it had grave misgivings about this conclusion, the Third Circuit viewed this result as compelled by dictum in Missouri v. Holland (1920), which states that if [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government. The Third Circuit broadly construed Holland as allowing the Senate and the President to expand the federal governments constitutional authority by negotiating a valid treaty requiring implementing legislation otherwise in excess of Congresss enumerated powers.

In our amicus brief, we stressed that Holland ignores the fundamental structure of the Constitution, and that the basic scheme of enumerated powers provides Congress with a limited set of powers, and the Tenth Amendment limits Congress to those enumerated powers. Permitting the President and one house of Congress to expand federal power by treaty violates this structure, potentially empowering the federal government to regulate all aspects of life. The Constitution explicitly vests Congress with the legislative powers herein granted, whereas the executive and judicial branches are vested with the executive power and the judicial power. Holland undermines this structural check on both the legislative branch and the powers of the branches that are derived from and dependent on the legislative power.

The Constitution prescribes a specific, detailed and cumbersome amendment process to expand Congresss powers in Article V. The Court has previously rejected the argument that Congress could circumvent the amendment process through the Fourteenth Amendment.

In addition, because the executive branch takes the position that the President may unilaterally abrogate treaties, Holland would unconstitutionally empower either the President to render statutes laws passed by Congress to implement a treaty unconstitutional by abrogating the treaty. Further, because a treaty that is terminated or breached by a foreign nation is no longer the law of the land, Holland would permit foreign nations at their discretion to render U.S. treaty-implementing statutes unconstitutional. Holland thus unconstitutionally empowers the President and foreign nations to repeal statutes, bypassing the legislative branch.

Hollands defenders have cited constitutional history, but we argued that recent scholarship shows this claim to be historically inaccurate.

Finally, we argued that Holland should not be upheld on stare decisis grounds because was wrongly decided, the expansion of Congressional powers by treaties is unnecessary in light of the broad interpretation of Congresss powers since Holland and the historical basis for Holland has been shown to be false.

To view our brief, click here. The brief was featured in the June 3, 2013 issue of the National Law Journal. Please click here to read the National Law Journal’s article.