Monday, November 4, 2013
San Diego (November 4, 2013) – In an article for Yahoo! News, University of San Diego (USD) School of Law Professor Michael Ramsey says the case of Bond v. United States, set for argument before the Supreme Court on Tuesday, November 5, will present the Supreme Court with the task of accommodating federalism without undermining national foreign policy.
At issue in the case: (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.
The U.S. government claims it can criminalize any local conduct, no matter how lacking in national or international implications, so long as it can point to a treaty the conduct possibly effects.
According to the government, the Chemical Weapons Convention, an international treaty, requires the United States to regulate all harmful misuses of chemicals, even of the most local and private nature, and the Constitution places effectively no limits on Congress’ ability to do so.
However, Bond and her supporters would impose limits on national treaty power that are hard to square with the Framers’ desire for a unified national foreign policy. They argue that Congress lacks power to implement treaties once they are adopted unless the treaty happens to involve powers of Congress expressly granted in Article I.
One side would unduly undermine federalism; the other would unduly undermine national foreign policy. Since both leading arguments seem unattractive, Ramsey suggests the need for middle ground.
In sum, Ramsey suggests there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.
Read the full article on yahoo.com.
About Professor Ramsey
Michael D. Ramsey is the Hugh and Hazel Darling Foundation Professor of Law and the director of International and Comparative Law Programs at the University of San Diego School of Law, where he teaches and writes in the areas of constitutional law, foreign relations law and international business law. Ramsey is the author of The Constitution’s Text in Foreign Affairs (Harvard Univ. Press 2007) and co-editor of International Law in the U.S. Supreme Court (Cambridge Univ. Press 2011).
About the University of San Diego School of Law
Recognized for the excellence of its faculty, curriculum and clinical programs, the University of San Diego (USD) School of Law enrolls approximately 900 Juris Doctor and graduate law students from throughout the United States and around the world. The law school is best known for its offerings in the areas of business and corporate law, constitutional law, intellectual property, international and comparative law, public interest law, and taxation.
USD School of Law is one of the 81 law schools elected to the Order of the Coif, a national honor society for law school graduates. The law school’s faculty is a strong group of outstanding scholars and teachers with national and international reputations and currently ranks 23rd worldwide in all-time faculty downloads on the Social Sciences Research Network (SSRN). The school is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1954, the law school is part of the University of San Diego, a private, nonprofit, independent, Roman Catholic university chartered in 1949.