President Obama is creative, if not correct, in his efforts to get around Congress. He has been scheming to use the United Nations arms treaty to implement gun-control schemes that are dead on arrival on Capitol Hill. A unanimous Supreme Court decision handed down Monday suggests his scheme, creative or not, isn’t likely to work.
The nine justices rarely find themselves in full agreement, but this time they found it patently absurd that federal prosecutors would use the international Chemical Weapons Convention to prosecute a jilted wife who used chemicals to try to injure her husband’s paramour. Carol Anne Bond, the scorned woman, spread a toxic mix of arsenic and related compounds on her rival’s doorknob, and the woman suffered a slightly burned thumb that was soothed with cold water. It was hardly an international incident.
Ordinary poisoning cases, such as the one in Bond v. United States, have traditionally been handled by state and local authorities. In what sounded more like a daytime television drama than a weighty case worthy of the attention of the highest court in the land, the government had sensed an opportunity to expand its powers by calling Mrs. Bond to court not for simple assault, but for violating the terms of the treaty under which the United States was a signatory.
Six justices found that there was no evidence that Congress intended the ban on chemical weapons to apply to irresponsible personal conduct like that of Mrs. Bond. Writing for the court, Chief Justice John Roberts first cited common sense, “To begin as a matter of natural meaning,” Chief Justice Roberts observed, “an educated user of English would not describe [Mrs.] Bond’s crime as involving a ‘chemical weapon.’” All agreed the incident and the lawsuit were a bit silly.
Justices Antonin Scalia, Samuel Alito and Clarence Thomas agreed with their colleagues, but thought they avoided the heart of the matter: Whether the Constitution prevents the use of an international treaty to make an end-around on restraint of federal power.
Mr. Obama’s top lawyer, Solicitor General Donald B. Verrilli Jr., argued that the Supreme Court in the 1920 case of Missouri v. Holland enables the federal government to do what it pleases through use of treaty power.
In his concurrence, which could be the basis for overturning the Holland decision later, Justice Scalia observed that “the power of the president and the Senate ‘to make’ a treaty cannot possibly mean to ‘enter into a compact with a foreign nation and then give that compact domestic legal effect.’”
“Holland [v. the United States],” Justice Scalia said, “places Congress only one treaty away from acquiring a general police power” that does not come from the Constitution. He carefully explains how a president who holds a supermajority in the Senate would need only to find a “ready accomplice” in a foreign country to override any inconvenient local, state or federal law.
For now, Mrs. Bond won’t be tried as a war criminal at The Hague, which will be a relief to radio stations that play Justin Bieber and Kanye West, that they won’t have to fret about being prosecuted under the United Nations Convention Against Torture.