Earlier this week, the Supreme Court heard oral argument in Bond v. United States, an important case on the issue of whether the Constitution allows the federal government to use international treaties to give Congress authority over issues that otherwise would be beyond the scope of federal power. Bond – which has already been to the Supreme Court once before – arose from a seemingly ridiculous case where federal prosecutors decided to charge a woman who had tried to injure a romantic rival by smearing a dangerous chemical on a doorknob the latter was likely to touch, with violating the Chemical Weapons Convention. The incredibly broad federal statute implementing the CWC bans the use or possession of “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals” (though there is an exemption for the use of such chemicals for a “peaceful purpose,” which was narrowly construed by the court of appeals).
As my colleague Michael Greve points out, during the oral argument Solicitor General Donald Verrilli repeated a mistake that has gotten the federal government into trouble in several previous federalism cases, including United States v. Lopez and NFIB v. Sebelius: refusing to admit that there are any structural limits to the scope of federal power. Throughout the argument, he consistently refused to admit that the courts could enforce any structural constraints on the range of issues that might be covered by a treaty. While he noted there “might” be an “outer limit” to the treaty power, he refused to state what it was, or even admit that it necessarily existed at all. This extreme position drew skepticism even from liberal Justice Stephen Breyer, a longtime supporter of broad theories of federal power: