Can the President and Senate invest the federal government with new powers not enumerated in the U.S. Constitution simply by signing and ratifying a treaty? Can the treaty power be used to override the Tenth Amendment and render it a dead letter? Those issues will be argued before the U.S. Supreme Court on November 5, 2013, in the case of Bond v. United States.
When I returned to Congress in January, I also wanted to return to the House Committee on Foreign Affairs on which I had served almost 20 years ago. I also wanted to serve on the Subcommittee that oversees the United Nations and other international organizations that continue to push treaties on us that could jeopardize the sovereignty of our nation.
Indeed, I am so concerned about these threats to national sovereignty that I filed an amicus curiae brief in the U.S. Supreme Court to undo an 86-year old case under which a treaty, in essence, amends the U.S. Constitution. I was pleased to be joined in this amicus curiae brief by Gun Owners of America, Gun Owners Foundation, Citizens United’s American Sovereignty Action Project, U.S. Justice Foundation, The Lincoln Institute, The Institute on the Constitution, The Abraham Lincoln Foundation, Downsize DC Foundation, DownsizeDC.org, Policy Analysis Center, Conservative Legal Defense and Education Fund, and the Tenth Amendment Center. I want to thank each of these groups for their commitment to this issue.
Here’s what this case is about. Mrs. Bond, a Pennsylvania woman learned that her husband had impregnated her best friend, and set about to harm her in some way by smearing some chemicals she obtained from work where the other woman would touch them, including her mailbox. Her attempts only gave her victim a chemical burn on her thumb.
However, based on the woman’s complaint to a mail carrier, the U.S. Postal Inspectors decided to make a federal case out of it. They set up surveillance cameras, searched her car, home and workplace, arrested Mrs. Bond, and incarcerated her initially in a post office. To make it seem like a postal matter, Mrs. Bond was charged with stealing two envelopes. But the Justice Department also charged her with two counts of violating a statute which implemented the Chemical Weapons Convention — a treaty designed to prevent countries from engaging in chemical warfare.
Mrs. Bond’s actions are like the types of cases handled every day by state and local law enforcement. Under Pennsylvania law, she could have been charged with assault, and very likely could have been convicted, and could have received a sentence appropriate for the crime. She was charged under federal law instead. These federal investigations and demands by federal prosecutors for punishment for dubious federal crimes are intruding on the police powers of state and local governments. Congress has no authority to criminalize simple assault, or the use of household chemicals, but claimed the authority based on the treaty the Senate had ratified. The crime with which she was charged was considered a way to implement the terms of the Chemical Weapons treaty.
The concept that the federal government can give itself additional powers by signing a treaty with a foreign power was invented nearly a century ago to justify federal laws regulating bird hunting. In Missouri v. Holland, the Supreme Court ruled that the federal government could regulate bird hunting — not because it had that power under the Constitution — but because the Senate had ratified a treaty on bird hunting. A prior federal law regulating bird hunting, the Weeks-McLean Act, had been conceded as likely unconstitutional even by its supporters.
The Missouri v. Holland court decision was written by Justice Oliver Wendell Holmes, Jr. beloved by left-wing statists as an early proponent of the concept of the Constitution as a “living document.” Holmes declared that cases before the Supreme Court “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Holmes embraced a formula for a nation without a written Constitution – not applicable to the United States of America.
One of my biggest concerns about the Missouri v. Holland case then, and about the Bond case now, is that this method could be used to criminalize other behavior that the federal government may not regulate, such as gun ownership. President Obama and Eric Holder have been searching for a way to implement gun control. Obama’s spokesman Jay Carney, when asked recently about the issue, told us “sometimes these efforts don’t succeed initially, but … this is going to get done.” Could Obama draw on the treaty power to impose further regulations on firearms?
On April 2, 2013, the United Nations General Assembly overwhelmingly approved a treaty designed to regulate global trade in conventional weapons. The Arms Trade Treaty, posted on the UN’s Disarmament page, regulates small arms and ammunition. Article 8 of the Treaty requires the government of any country which imports guns to “take measures to ensure that appropriate and relevant information is provided” to the government of the exporting country, stating “such measures may include end use or end user documentation.” This and other similar articles in the treaty, such as the duty to maintain a national control system, would open the door to a national registry of guns, facilitating the confiscation of firearms of the citizenry in an emergency declared by the President. Predictably, on September 25, 2013, Secretary of State John Kerry signed this treaty on behalf of the United States, presenting it to the U.S. Senate for ratification.
If President Obama could form another “Gang of Eight” Senators to join him to ratify this UN gun treaty, a Supreme Court with just one new member could find an excuse to claim a powerful new theory to erode gun rights. Even since District of Columbia v. Heller, no federal firearms law has been struck down by the Supreme Court on Second Amendment grounds. The only federal gun law struck down by the Supreme Court implicated the Tenth Amendment. If Missouri v. Holland is not overruled, a UN treaty could be used as a basis to implement a national gun registry, or other restrictions on guns.
But firearms are just one reason why my amicus brief asks the Supreme Court to recognize the text and meaning of the Tenth Amendment, and to repudiate Missouri v. Holland as unconstitutional. There are other threats as well, including UN efforts to override US law limiting access to nutritional supplements, and to control our use of energy. If we don’t stop the federal government here in the Bond case, the internationalists at home and abroad will keep trying to reduce the individual freedom of Americans, so that we are more like the citizens of other nations. Well, we don’t want to be like the other nations. Our job is to defend America against enemies foreign and domestic — and, sadly, there is no shortage of either.