Rule of Thumb: How Foreign Governments and Congress Have Scrapped the 10th Amendment

Rule of Thumb: How Foreign Governments and Congress Have Scrapped the 10th Amendment

BY Gary North

We live in a nation that is run by federal bureaucrats. There is almost nothing we can do to stop them from interfering in our lives, other than through the courts. It is extremely expensive to do this.

Let me give you a recent example. The United States Supreme Court is hearing the case in which, if upheld by the Court, the Congress of the United States will be authorized to pass legislation that is inconsistent with the United States Constitution, as long as the legislation is an extension of the treaty power.

If the court upholds the case, Congress will be able to override limitations of the federal government that have been imposed by the 10th amendment. This is a 10th amendment case. Wikipedia describes it. The case is almost beyond belief. It has to do with a burned thumb. The case is Bond v. U.S.

The husband of Carol A. Bond of Lansdale, Pennsylvania impregnated Myrlinda Haynes. Mrs. Bond told Haynes, "I am going to make your life a living hell." Federal postal inspectors videotaped Mrs. Bond stealing mail and putting poison in the muffler of Haynes's car.

Bond was indicted for stealing mail and for violation of the Chemical Weapons Convention Implementation Act of 1998. Her appeal argued that applying the chemical weapons treaty to her violated the Tenth Amendment. The Court of Appeals found Bond lacked standing to make a Tenth Amendment claim.

Can you imagine this? Here is a woman who is about to be put into prison for violating a treaty, which the U.S. government says overrides the 10th amendment, yet she had no legal standing in the case. This is Alice through the looking glass.

In a unanimous decision, the Supreme Court found that Bond had standing to argue that a federal statute enforcing the Chemical Weapons Convention in this instance intruded on areas of police power reserved to the states.

Justice Kennedy reasoned that actions exceeding the federal government's enumerated powers undermine the sovereign interests of the states.  So, in 2011, the Supreme Court finally gave legal standing to citizens to challenge the U.S. government's official nullification of the 10th amendment. This had not previously been determined. This took over 200 years! The Third Circuit, on remand, found that the Supreme Court's decision gave Bond standing to raise federalism questions about the federal government's power to enforce legislation that implements a treaty. However, the circuit court found that, under the 1920 Supreme Court precedent Missouri v. Holland, the legislation was indisputably valid because the treaty is valid.

Here is the issue.

(1) Whether the Constitution's structural limits on federal authority impose any constraints on the scope of Congress' authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government's treaty obligations; and

(2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court's decision in Missouri v. Holland.

http://www.scotusblog.com/case-files/cases/bond-v-united-states-2/

Will the Court uphold the Department of Justice on this matter? The Department of Justice is arguing that Mrs. Bond deserves prison because of the violation of the treaty.

The stakes are huge. The Cato Institute summarizes.

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.

http://www.cato.org/publications/legal-briefs/bond-v-united-states-0

It gets worse.

The justices repeatedly questioned Solicitor General Verrilli about whether there are any constitutional limits on the power of Congress to enter treaties or implement them. Chief Justice Roberts specifically asked whether Congress could ratify a treaty that gave the federal government national police powers and then pass an implementing statute giving the federal government "the authority to prosecute purely local crimes." Verrilli attempted to dodge the question by answering that it "seems unimaginable" that the Senate would ratify such a treaty, to which Justice Anthony Kennedy responded that it also "seems unimaginable that you would bring this prosecution." The courtroom broke into laughter.

Ultimately, Verrilli's answers on what limits there are on the government's power under a treaty were confusing and contradictory. He specifically referred to the Senate's ratification as "an important protection," but then avoided giving an answer as to what the "outer bound" would be. Verrilli made it appear that the government does not really believe there is any limit.

http://pjmedia.com/blog/bond-v-u-s-supreme-court-hears-thumb-sized-federal-case/?singlepage=true

We are a 5 to 4 vote away from the end of the 10th amendment.

Let us hope that the Court will throw out Holland. This seems unlikely. Let us at least hope that the Court supports Mrs. Bond's claim that the chemical weapons treaty does not apply to her. This seems likely. But no one knows.