The argument in Bond v. U.S. (docket 12-158) reached the grand constitutional scale that has been its potential all along. At the end of an hour-long hearing, it appeared that the government might just have to hope that it loses the case on narrow grounds, because it might lose it in a sweeping way. Some of the Justices openly canvassed ways to cut back, perhaps sharply, on the national government’s power to negotiate or to implement global treaties — the very thing that U.S. Solicitor General Donald B. Verrilli, Jr., was trying so hard to head off.
For my own part, I was also struck by how none of the justices seemed impressed with the U.S. Solicitor General’s pleas for deference to the Executive Branch in the interpretation and administration of the Chemical Weapons Convention. Several justices seemed to almost scoff at this argument at times, noting that it was not emphasized in the briefs. The one exception, a reference to the brief filed by John Bellinger and former U.S. State Department Legal Advisors, was brushed aside fairly easily at argument.
So I think the case will turn out to be a straight-up domestic American federalism debate, with few foreign affairs concerns implicated in either the majority or the dissent. If I’m right about this, then there seems little reason to doubt that we are headed toward a 5-4 decision in favor of the petitioner. The frequent use of the phrase “police power” is a bad sign for the government, since that is the one thing the Court doesn’t want to acknowledge giving to the federal government. Moreover, the facts of this case, involving the federal prosecution of what is very close to a plain vanilla domestic dispute, should be enough to tie together a pro-federalism majority on the court.
Indeed, I think the unusual Nick Rosencranz inspired argument which separates the constitutionality of the treaty-implementation power from the treaty power actually makes the federalism argument easier to swallow. The pro-federalism justices can simply hold that constitutional limits the domestic implementation power does not necessarily limit the treaty power itself. The President should not feel constrained to enter into treaties since this ruling does not reach the treaty power. Justice Scalia repeatedly embraced this argument, and even conceded that there are no similar limitations on a self-executing treaty. It is a bit of an odd argument, since it does imply that a self-executing treaty could accomplish here what the statute could not, but that case would at least be left for another day.
I am also struck that there was not much fealty to Justice Holmes’ opinion in Missouri v. Holland. The US government did not rely on the authority of that decision very much, and Bond’s counsel came up with a way to distinguish it that no justice bothered to challenge. So fealty to precedent does not appear to be much on their minds either.
Without national security or precedent, the Government’s argument is much weaker, and I agree with Denniston that its best outcome is a very narrow construction of the statute (which Justice Breyer seemed to be leaning toward with his emphasis on the statute’s exception for a “peaceful purpose” and which he repeatedly urged the US government to do as well). I think one could get 8 votes for a narrow construction of the relevant statute. But I think there is appetite on the Court to go farther. Will they?