12 Jun The Supreme Court Misses an Opportunity to Place Constitutional Limits on the Treaty Power in Bond v. United States
My co-author John Yoo and I have a piece up on Forbes today arguing that the U.S. Supreme Court missed a grand opportunity in Bond v. U.S. to place constitutional limits on the treaty power. We take aim at Missouri v. Holland head-on. We criticize the interpretation of the Chemical Weapons Convention Implementation Act adopted by the opinion for the Court of Chief Justice Roberts and argue this decision has echoes of his opinion in Sebelius on the Affordable Care Act. Here is an excerpt:
Holmes was wrong in 1920, however, and the Obama administration is wrong today. The Founders’ original understanding supports a federalism limitation on the treaty power, and this is especially compelling in light of today’s far-reaching and ambitious modern treaties. Unfortunately, the Court’s opinion refused to directly reject Missouri’s mistaken approach.