BOND v. UNITED STATES
Carol Anne Bond worked for the chemical manufacturer Rohm and Haas. When she learned that her friend Myrlinda Haynes was pregnant and that Bond’s husband was the father, she used her connections with the chemical company to obtain the means for revenge. She stole and purchased highly toxic chemicals that she applied to Haynes’ doorknobs, car door handles, and mailbox. Haynes suffered a minor burn, and after contacting a federal investigator, Bond was identified as the perpetrator. She was charged with several violations of the Chemical Weapons Convention Implementation Act of 1998 (Act).
In the district court, Bond moved to dismiss the case and argued that Congress did not have the authority to enforce the Act because it subverted states’ rights in violation of the Tenth Amendment. The district court denied the motion, and Bond conditionally pled guilty with the understanding that she could continue to appeal the decision regarding the validity of the Act. She was sentenced to six years in prison. Bond renewed her challenge to the Act in the U.S. Court of Appeals for the Third Circuit, which held that Bond did not have standing to appeal. The U.S. Supreme Court reversed the decision and held that the case must be considered on its merits. The case was remanded back to the U.S. Court of Appeals for the 3d Circuit. The Court of Appeals held that the Act was within Congress’ power to enact and enforce.
(1) Does Congress have the authority to enact legislation that enforces a treaty but goes beyond the scope of the treaty and intrudes on traditional state prerogatives?
(2) Can the Chemical Weapons Convention Implementation Act be properly interpreted so that it does not apply to ordinary poisoning cases, which have been traditionally handled by state and local authorities?
Legal provision: Chemical Weapons Convention Implementation Act of 1998
No, yes. Chief Justice John G. Roberts, Jr. delivered the opinion for the 6-3 majority. The Court held that federal law typically does not intrude on the ability of states to regulate local matters, and the Chemical Weapons Convention Implementation Act is not an exception to that general rule. While Congress has the authority to create legislation to enforce treaties, it must do so while respecting the traditional division of sovereign responsibility between the federal government and the states. The Court also held that it is incumbent upon the courts to be sure of Congress’ intent before ruling based on such a rationale; in this case, because there is no evidence that Congress intended the statute to have expansive powers, it must be read more narrowly. In fact, the language of the statute suggests that the facts of this case do not match the types of situations the statute was enacted to govern.
Justice Antonin Scalia wrote an opinion concurring in the judgment in which he argued that, in determining whether the Chemical Weapons Convention Implementation Act covers Bond’s actions, the majority opinion overstepped its bounds and performed Congress’ duty. Justice Scalia also wrote that it was clear from the wording of the statute that Bond’s actions were covered, and the majority opinion’s interpretation of the statute made it so broad as to be unintelligible. However, the statute was unconstitutional because it infringed on the rights of the states. Justice Clarence Thomas and Justice Samuel A. Alito, Jr. joined in the opinion concurring in the judgment. In his separate opinion concurring in the judgment, Justice Thomas wrote that, while Congress has the power to create laws that enforce treaties, that power does not extend to the enforcement of laws that would infringe on states’ rights. The historical context of this “Treaty Power” indicates that it was meant to be limited to international affairs and not interfere with the constitutional structure of federal and state power. Justice Scalia and Justice Alito joined in the concurrence in judgment. Justice Alito also wrote a separate opinion concurring in the judgment in which he argued that the statute went beyond Congress’ power to enforce treaties and is therefore unconstitutional.
ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument first this morning in Case 12-158, Bond v. United States.
Paul D. Clement: Mr. Chief Justice, and may it please the Court:
If the statute at issue here really does reach every malicious use of chemicals anywhere in the nation, as the government insists, then it clearly exceeds Congress's limited and enumerated powers.
This Court's cases have made clear that it is a bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct without regard to a jurisdictional element or some nexus to a matter of distinctly Federal concern.
The President's negotiation and the Senate's ratification of a treaty with a foreign nation does not change that bedrock principle of our constitutional system.
Justice Ruth Bader Ginsburg: But, Mr. Clement, you said that -- that the treaty is valid and the implementing legislation seems to largely copy the words of the treaty without adding anything.
So, it's a puzzle that the treaty could be constitutional, but the implementing legislation that adds nothing is unconstitutional.
Paul D. Clement: Well, Justice Ginsburg, I guess I would quarrel with your premise, which is, it is true that the convention in the statute used similar terms and terminology, but there's one very important difference between the convention and the statute and that actually differentiates this case from Missouri vs. Holland.
And that difference is that the convention itself doesn't directly regulate individual conduct at all.
And so all the -- all the convention does--
Justice Elena Kagan: But the convention -- but the convention tells the State parties, go regulate individual conduct in exactly the way that this convention regulates State parties.
And then what the legislation does is, as Justice Ginsburg said, just mirror the convention as the convention contemplated.
Paul D. Clement: --Well, Justice Kagan, to be quite precise, though, what the convention says -- and this is Article 7, Section 1, it's 33-A of the blue brief appendix.
What it says is that each nation State that signs the convention agrees in accordance with its constitutional processes to pass penal laws that make unlawful for individuals conduct that would violate the convention if undertaken by a nation State.
And I would respectfully suggest that making that translation, if you will, between what violates the convention if you're a nation State and what would be comparable individual conduct is not obvious.
And when the government does that through penal legislation, there's no reason why that penal legislation shouldn't have to comply--
Justice Sonia Sotomayor: Why not?
Paul D. Clement: --as we promised with our--
Justice Sonia Sotomayor: Mr. Clement, why not?
Meaning there -- there can be no doubt that chemical weaponry is at the forefront of our foreign policy efforts right now.
Look at the Syria situation alone.
It would be deeply ironic that we have expended so much energy criticizing Syria, when if this Court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional.
We're putting aside the impact that we could have on foreign relations.
Why is it, if it's okay to regulate the possession of marijuana, a purely local crime, why is it unconstitutional to regulate the use of something that can kill or maim another human being?
A chemical that can kill or maim another human being?
Paul D. Clement: --Well, I think--
Justice Sonia Sotomayor: I don't understand where the disconnect is in terms of our Federal or State system.
Paul D. Clement: --Well, Justice Sotomayor, I think it really gets down to the difference between Raich on the one hand and Lopez on the other, which as this Court has held, that it is a classic and rational way to regulate commerce to basically prohibit certain items from commerce.
Justice Sonia Sotomayor: So why isn't this saying, there's no dispute that these chemicals were transported against -- along interstate lines.
That's not even disputed in this case.
Paul D. Clement: But I don't think it was really disputed in Lopez that the firearm would have had to cross State lines.
But the problem in Lopez was the Federal statute was not structured in a way that had a jurisdictional nexus that made the statute only applicable as a regulation.
Justice Antonin Scalia: Well, we didn't take this case to -- to decide the Commerce Clause question, did we?
The government didn't even assert it below.
It asserts it now, but as we took the case, the issue was whether the treaty supported the laws.
Paul D. Clement: That's right, Justice Scalia.
And we do think that the government, like a private party, can waive a constitutional argument.
On the other hand, I would say that we're not particularly concerned about the Commerce Clause argument because we think the Commerce Clause argument has the same basic defect as the treaty power argument, which is that the police--
Justice Elena Kagan: Do you think -- do you think, Mr. Clement, and this goes back to Justice Ginsburg's question, could the -- could this treaty have itself regulated individual conduct?
Could the treaty have been self-executing?
Paul D. Clement: --Well, I think that's an interesting question, and I don't think the Court needs to answer it.
I mean, I would take the position that if there really were a self-executing treaty that tried to impose criminal prohibitions, and I don't think there is any treaty like that, but if there were one, I would say here that it violates the Constitution for the same basic reasons that this implementing legislation does.
But I -- but I--
Justice Elena Kagan: Where would you find that in the Constitution?
Because there's clearly a treaty power that does not have subject matter limitations.
And, indeed, if you go back to the founding history, it's very clear that they thought about all kinds of subject matter limitations and James Madison and others decided, quite self-consciously, not to impose them.
So where would you find that limitation in the Constitution?
Paul D. Clement: --I would find that limitation in the structural provisions of the Constitution and the enumerated powers of Congress.
And I would say that it would be very--
Justice Elena Kagan: But this isn't an enumerated power.
The enumerated power is the treaty power.
So you have to find a constraint on the treaty power.
Where does it come from?
Paul D. Clement: --Well, I think where that it would come from, again, is the structural provisions of the Constitution.
If we had a self-executing treaty that purported at a national level to commandeer State and local police officers, I would think that there might be -- you could call it a Tenth Amendment objection, we could call it an enumerated power objection.
There might be an objection to that treaty.
Justice Samuel Alito: Well, don't you think the word “ treaty ” has some meaning?
It is certainly true that going back to the beginning of the country, there have been many treaties that have been implemented in ways that affect matters that otherwise would be within the province of the States.
One of the original purposes of -- objectives of the Constitution was to deal with -- with a treaty power was to deal with the issue of debts owed to British creditors.
And there have been cases about the property rights of -- of foreign subjects, about the treatment of foreign subjects here, about things that are moving across international borders, about extradition and all of those.
But in all of those, until fairly recently, certainly until generally after World War II, all of those concerned matters that are of legitimate concern of a foreign State.
That was the purpose of a treaty.
So can't we see something in that, in the meaning of a treaty, what it was understood to mean when the Constitution was adopted?
Paul D. Clement: I think that's right, Justice Alito.
And I didn't mean in answering Justice Kagan's question to fully accept the premise that there's no limit on the treaty power whatsoever.
But I do think that it's important to recognize that in the context of non-self-executing treaties, there's a real opportunity to leave for another day the question of whether the treaty itself is valid, because sometimes a treaty is non-self-executing precisely because the Senate recognizes--
Justice Anthony Kennedy: If you had been the President's counsel, would you have advised him that it was unconstitutional to sign this treaty as written?
Paul D. Clement: --No.
Absolutely not, Justice Kennedy, but that's precisely because it's a valid non-self-executing treaty.
By its terms, it doesn't do anything to direct -- directly regulate individual conduct.
And if I were the President's counsel, I would have said, honestly, Mr. President, I don't think this requires us to have any law that applies to garden variety assaults with chemicals.
But if we need that to discharge our treaty obligations, the States are absolutely ready and able to shoulder that task.
There's no State in this country that doesn't have a general assault statute that would be covered by this conduct.
There is no State that doesn't have a murder statute to cover this conduct--
Justice Ruth Bader Ginsburg: Mr. Clement, there's an irony in what you just said, because the victim, many times, went to the State police and said, please help me.
And they turned her away a dozen times.
And finally they said, go to the post office.
So this doesn't seem to be -- you're arguing that this trenches on the State's domain.
And, yet, in this very case, it wasn't until the State referred her to the post office, Federal officials, that she got any action.
Paul D. Clement: --Well, Justice Ginsburg, one way to understand that is that the State of Pennsylvania exercised its prosecutorial discretion not to pursue this matter.
I don't think that -- I don't even think the government says that that exercise of prosecutorial discretion put us in violation of our treaty obligations.
Our treaty obligation, at most, is to have a law that prohibits this conduct, which the States certainly do.
The treaty obligation is not to make sure that every single use -- malicious use of chemicals is, in fact, prosecuted by the State or local officials.
Justice Elena Kagan: Mr. Clement, could I make sure I understand your test?
Your test is to say that with respect to every prosecution under this -- under this treaty, that a court has to ask whether the prosecution has a sufficient nexus to national or international concerns?
Is that -- is that your test?
Paul D. Clement: No, that's not my test, Justice Kagan.
I would actually come at it from the other end of the stick, which is to say, that the one thing I think I know from this Court's precedence is that the Federal government doesn't have a general police power.
So as I look at this statute, it can either be saved by essentially creating a jurisdictional element out of the phrase “ peaceful ” and equating it with non-war-like or, if the statute has this general character, then at least as applied to the chemicals here, which are pure dual use chemicals, it can't be constitutionally applied.
Justice Elena Kagan: Well, I guess I'm still looking for a test and I thought that the test that I just articulated was really directly out of your briefs.
But if it's -- but if -- if you're suggesting that that's not the test, give me the test that we're supposed to ask with respect to this case or any other as to whether the prosecution is unconstitutional.
Paul D. Clement: It's whether the Federal statute exercises a general police power.
And if it does--
Justice Elena Kagan: That sounds like a facial challenge.
Now, I thought that you made very careful to talk about that this was an as-applied challenge to this particular prosecution.
Paul D. Clement: --Well, that's because the only relief I'm seeking is to have my client's conviction vacated.
So this is the classic as-applied challenge.
Now, the reasoning that the Court may employ in vindicating my as-applied challenge may suggest that the statute is unconstitutional in some or all of different applications, but our claim has always been that the--
Justice Elena Kagan: So you're saying if the statute extends to things that we've generally thought of as part of the police power, that's sufficient.
Paul D. Clement: --I would say that if a Federal statute exercises the police power, by which I mean it criminalizes conduct without regard to jurisdictional element or some nexus to a matter of distinctly Federal concern, then that statute exceeds Congress's power.
That was the case in Lopez; that was the case in Morrison.
And I think unless you accept our narrowing construction, that's the case here.
Justice Elena Kagan: Okay.
Nexus, nexus to a national concern, again, is what I understood you to say in your brief.
But let me give you a hypothetical and you tell me whether your test meets it.
Let's say it's the same convention except it relates only to Sarin gas, and -- and there's a chemist out there and, you know, the -- the implementing legislation mirrors the convention.
There's a chemist out there who manufactures Sarin gas -- I take it it's pretty easy to manufacture -- and sends it through the ducts of a house and kills everybody in it.
Does that have a nexus to national concerns?
Paul D. Clement: It does, Your Honor, and it would be valid legislation precisely because Sarin is something that clearly Congress could prohibit in all its uses.
And as I understand how this statute applies to Sarin gas or other things certainly on Schedule I -- there are some Schedule I substances that are talked about both in the convention and the treaty -- those things are always unlawful.
What is particularly unusual about the statute's application to something like potassium dichromate or vinegar or whatever you have is that in most of its possession and uses it's perfectly lawful, and what makes it a chemical weapon in the government's theory is when it's used purely intrastate in a malicious way.
Justice Elena Kagan: So but this is -- in my hypothetical -- and you didn't run away from it at all; I applaud that.
In my hypothetical, it's a completely domestic use.
You know, it's just this chemist didn't like his neighbor and used Sarin gas.
And you're saying what the difference is, well, what the treaty makers did was to find the category of chemicals more broadly.
And I guess what I want to know is, you are imagining a world in which judges day to day try to get inside the head of treaty makers to think about, you know, in this case we understand that there's a national interest in regulating Sarin gas, but we don't think that there's a sufficient interest in regulating some other chemical or some other chemical or so on down the line.
It seems to me a completely indeterminate test and one that would have judges take the place of treaty makers in terms of deciding what is in the national and international interest.
Paul D. Clement: Well, Justice Kagan, I would beg to differ.
I actually think that our approach to this case avoids judges being put in that difficult position, precisely because we distinguish, unlike the government, between the validity of the convention and the validity of the implementing legislation.
And then as to the implementing legislation, we simply ask the courts to do what they do in every other context, which is to check and see if that implementing legislation is consistent with our basic chartering document.
And it's the government's position, which I don't really understand why this would work, but their theory is if that the non-self-executing treaty is valid, then the implementing legislation is ipso facto somehow valid.
Justice Samuel Alito: And do you think it would be difficult--
Paul D. Clement: And think about the convention that was before this Court in the Medellin case, the Vienna Convention on Consular Notification.
It puts an obligation on any arresting official to provide notification to the consulate about an arrested foreign national.
Now, I suppose it would be a perfectly rational way to implement that convention to have a national police force and so every arresting officer is a Federal officer who's fully apprised of the Vienna Convention responsibilities.
That would be a rational way to implement the treaty, but it wouldn't be remotely consistent with our Constitution.
On the other hand, that same valid non-self-executing treaty can be validly implemented by chartering the State Department to work with police officers on a State and local level to understand their obligations.
Justice Samuel Alito: --Do you think it would be difficult for a judge to ask, is there any possibility that there is any other country in the world that has the slightest interest in how the United States or any of its subdivisions deals with the particular situation that's involved in this case?
Paul D. Clement: Justice Alito, I think that would be one way of approaching the question.
I think that would be a--
Justice Samuel Alito: Do you think that would be beyond the -- that would be beyond the ability of Federal judges when they -- when a case like this comes before them?
Paul D. Clement: --I don't think it would be beyond their ability.
I also don't think it would be beyond -- beyond the ability of a Federal judge to say, okay, let's hypothetically ask the question in the absence of a non-self-executing treaty, would Congress have the power to pass this statute?
And if the answer to that is no, then I think the burden sort of shifts to figure out why it is that the treaty adds something to the powers of the Federal government.
And I think this, just to make clear, I think this is a very different context from what the Court had in Missouri v. Holland, because there the treaty itself prohibited individual action.
An individual violated the treaty if they took a migratory bird out of season.
And so in that sense, the enforcement statute did nothing more than put a criminal penalty on violating conduct that was already prohibited to the individual.
And in that--
Justice Anthony Kennedy: Is it -- is it one way to characterize your argument or is it too unfairly confining to your argument to say that what you're suggesting is something like a clear statement rule, that if the treaty intends nation states to have their own constitutional structure superseded at a minimum it has to say so, and then we will come to the question of whether or not they can do it?
Paul D. Clement: --I think that would be a fair characterization of our argument, but only to add that this would be the anti-clear statement case.
Because the one place that this convention talks about imposing obligations on individuals, it's a promise by the nation state to pass penal legislation that is in accordance with their constitutional systems.
So it's very bizarre -- that's Article VII, Section 1, it's I think 33a.
So it's very bizarre when the only way we're reaching individual conduct here, unlike the treaty in Holland, is a United States promise to pass legislation that comports with our constitutional process, to say that the convention, therefore, allow us to pass legislation that doesn't comport with our constitutional process.
Justice Antonin Scalia: Mr. Clement, I -- I don't understand how -- how you distinguish Sarin gas.
Why is Sarin gas different from vinegar?
Paul D. Clement: Because Sarin gas is I think more equivalent to something that the Congress would try to deal with like the way it dealt with marijuana in Raich.
I think -- it's just a reflection of the idea that when you're talking about things where the Federal Government is trying to prohibit it, then there's a greater Federal power to do that.
And I think with Sarin gas you could imagine -- put aside the commerce power for a second, put aside the treaty power -- it may be that with Sarin gas, even under the war powers, the Federal Congress can say, look, that's something that's -- you know, it's sort of inherently a chemical weapon and we're going to prohibit people from having that.
That's very different from these situations where, if you think about it, the only thing that makes these chemicals chemical weapons instead of chemicals is their internal, intrastate use in a malicious way.
And that's different, I think, from at least a hypothetical statute that says, look, here are -- I mean, there's three schedules in the statute, 43 different chemicals that are particularly problematic.
If the Federal government wants to regulate those and prohibit the unauthorized possession of those, I don't see why they couldn't do that with or without the treaty.
But when -- what is so anomalous here is the idea that these chemicals, everything, rat poison, vinegar, whatever it is, these things are perfectly lawful, we don't think of them as chemical weapons, unless and until they're used in a malicious way, and then all of a sudden they become classified as chemical weapons.
That's a very odd statute.
But it does I think operate in a way that is just inconsistent with the bedrock principle that the Federal Congress just doesn't have this kind of police power.
Justice Stephen G. Breyer: Is the chemical used here one of the chemicals that's listed in the annex to the treaty?
Paul D. Clement: I don't believe so.
It's certainly not one that is listed on the three schedules.
There are 43 chemicals.
Neither of these are on there.
And I do think there is an important difference because -- this is perhaps an odd way to think about it, but, you know, this is a statute that's really trying to regulate nouns, chemical weapons.
And with respect to something like weaponized chemicals or Sarin gas, it makes sense to say those are chemical weapons.
But with respect to otherwise harmless chemicals, the only thing that under the government's theory turns them from chemical weapons -- I'm sorry -- from chemicals into chemical weapons isn't a noun, it's a verb.
It's their malicious use.
And that puts you in a very odd sort of situation.
I think that, you know, if Congress had come in and said, look, there are certain chemicals that by their very nature are almost inherently weaponized, I think Congress would have a lot more authority to proceed in that kind of situation.
Justice Sonia Sotomayor: Counsel, we permit that in all sorts of definitional sections of the criminal code.
We call a dangerous weapon anything that you use to inflict serious injury on someone.
I don't think of a car as necessarily a dangerous weapon.
It is something I use to transport myself.
It's only when I'm using it for a prohibited purpose that it turns itself into a dangerous weapon.
Paul D. Clement: Well--
Justice Sonia Sotomayor: So I'm -- I'm having a problem with this noun-verb distinction.
Why isn't the intentional burning, killing of another human being using chemicals the essence of what this treaty is trying to stop?
I thought that's what it was trying to do.
Paul D. Clement: --A couple points--
Justice Sonia Sotomayor: You want to add on the war-like purposes.
But the treaty permits exceptions for any peaceful purpose.
Paul D. Clement: --Justice Sotomayor, a couple of points.
First of all, generally, you might be right that -- that the criminal law takes objects that are otherwise innocent and say they can be used in a malicious way and criminalizes it.
But most of that work is done by State and local criminal law, and at the Federal level you need something else.
You need a jurisdictional element, something that has a distinct Federal concern.
Second, as to the concerns about this convention--
Justice Sonia Sotomayor: The treaty power.
Paul D. Clement: --Well, I don't think that the treaty power--
Justice Sonia Sotomayor: That's what was said in the--
Paul D. Clement: --especially when there's this much of a disconnect between what the treaty power does and what the statute does, which is the treaty, again, does not directly regulate at all individual conduct.
It is regulated at nation State conduct.
Now, with all due respect, I don't think that nation States poison romantic rivals, attempt to commit suicide or try to get rodents out of their houses.
And so when individuals do those things, I think it's -- it's hard to draw an analogy between what's forbidden to a nation State and the individual action.
But any work that is done in the statute by drawing that analogy is done by the statute and not by the convention.
So I don't--
Justice Sonia Sotomayor: --So if a terrorist took these chemicals and put it on every doorknob in Boston, that wouldn't be regulated by this or -- the very exact same chemicals.
Paul D. Clement: --Right.
And we would say that under our narrowing construction, that that's covered.
Justice Sonia Sotomayor: Because it's war-like.
Paul D. Clement: Because it's a war-like use of the chemicals.
Justice Sonia Sotomayor: All right.
Now we have--
Paul D. Clement: We would also point out for the record that that same conduct would obviously be covered directly by Federal statutes that target terrorism directly.
So no matter how you decide that case, whether you accept our narrowing -- if you accept our narrowing construction, that conduct will be covered by two Federal statutes.
If you don't accept our narrowing construction but hold this statute unconstitutional, then that conduct is still going to be covered.
And I just think when you try again to think about what the convention is after, it is not really after Ms. Bond's conduct.
I don't think any one of our treaty partners said, oh, my goodness.
There's been a deployment of chemical weapons in Norristown, Pennsylvania; I sure hope the United States steps up to its treaty obligations and prosecutes this horrible deployment of chemical weapons.
Nobody would say that because nobody speaking normal English would identify this as a deployment of chemical weapons at all.
Justice Elena Kagan: Well, but, Mr. Clement, it's absolutely clear that the treaty was after enforcement as to individuals with respect to all the prohibitions, that the treaty said: Go enforce this as to individuals and do it consistent with your constitutional processes.
And then Congress passes a law that is consistent with its constitutional processes, and it completely mirrors the treaty.
Paul D. Clement: Two things, Justice Kagan, neither of which will surprise you, I suppose.
One is I don't think this is consistent with our constitutional processes.
Justice Elena Kagan: I guess I'm still trying to figure out why.
I mean, Holmes dealt with this in Missouri v. Holland.
He says there's a treaty power, it's an enumerated power, there's a necessary and proper clause that functions to -- to allow Congress to give effect to that treaty power.
It's -- you know, this is a -- a situation where there's a prohibition on the States in terms of entering into treaties or in terms of sharing that power in any way.
And he says, you know, it's just these invisible radiations that you think come from the structure of the Constitution.
And he specifically rejected this argument, the same argument that you're making, the penumbras and emanations of the Constitution.
Paul D. Clement: Justice Kagan, I think you have to read Missouri v. Holland both in the context of the treaty that the Court had before it and the argument that it had before it.
Missouri made a very strange argument in Missouri v. Holland, one that no modern litigant would make.
They made an argument that -- they went out of their way to identify a conflict between the Federal treaty and State law and said, therefore, we win under the Supremacy Clause.
And Holmes scratched his head and said no.
The treaty under -- under Article 6 is supreme to both State law and not the other way around.
But he also said this one sentence that sort of bedeviled the lower courts here, which says, well, and if the treaty's valid, of course, the legislation is valid.
That made sense in the context of the treaty he had before him, because he had a treaty that directly prohibited individual conduct and a statute that enforced that individualized prohibition with criminal penalties.
So in that case, I suppose it was right, that the treaty and the implementing legislation stood or fell together.
That's not the case here.
If I could reserve my time.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF GENERAL DONALD B. VERRILLI, JR., ON BEHALF OF THE RESPONDENT
Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:
The framers gave the Federal Government exclusive control over the treaty function to ensure that it could knit the nation together as one and allow it to be fully sovereign in the conduct of foreign affairs.
Petitioner's ad hoc “ too local ” limit on the treaty power can't be squared with a judgment the framers made, this Court's precedent, or consistent historical practice since the time of the founding, and it would compromise foreign affairs and national security interests of the first order.
Chief Justice John G. Roberts: General, let's suppose there's a multilateral treaty, the -- the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power.
And Congress passes a statute saying we have the authority to prosecute purely local crimes pursuant to this international convention that the President has signed.
Any problem with that?
Donald B. Verrilli Jr: There may well be.
Let me walk through the analysis that I think you'd have to go through.
First, I would make the point, Mr. Chief Justice, that it seems unimaginable that a convention of that kind would be ratified by two-thirds of the Senate, which it would have to be.
Justice Anthony Kennedy: It also seems unimaginable that you would bring this prosecution.
But let's leave that.
Donald B. Verrilli Jr: And that does go to the point--
Chief Justice John G. Roberts: And just to press it further, the -- the point is that it's a transfer of authority from the States to the national legislature.
I don't know why you'd look to the national legislature to say, well, we'd never do that.
Donald B. Verrilli Jr: --Well, the framers thought that the two-thirds guarantee -- the two-thirds ratification requirement, was an important structural guarantee to protect the interests of the States.
Chief Justice John G. Roberts: At a time when the Senate was elected by the State legislatures.
Donald B. Verrilli Jr: Yes, Mr. Chief Justice.
But there's no doubt that the framers thought that would be an important protection.
But beyond that, this Court has said that -- that there is an inquiry.
It said in dictum.
It has never held that a ratified treaty exceeds -- exceeds the Federal Government's constitutional authority.
It's never held that a provision implementing a ratified treaty exceeds the Federal Government's constitutional authority.
Justice Antonin Scalia: So your answer is if -- if that unimaginable thing should happen, it would be okay?
Donald B. Verrilli Jr: No.
Justice Antonin Scalia: All right.
Donald B. Verrilli Jr: My answer is this: That the Court has said that there is an inquiry into whether the -- it is a proper subject of a treaty and that that inquiry could take into account whether it is imposing a fundamental change in the character of the government.
But that's not a question the Court needs to answer here, because this treaty, the -- the Petitioner concedes, is a valid exercise of the treaty power, and the legislation implementing this treaty is coextensive with the obligations of the treaty.
There is no--
Chief Justice John G. Roberts: I don't know why it would not be a valid exercise of the treaty power.
A case like Medellin caused serious conflict with our international obligations because we held, look, the Federal Government does not have the authority to tell the sheriff in Texas what to do.
That caused a great deal of strain in -- in our international relations.
And I think the United Nations could well say, look, we don't want treaty parties to have to deal with whether it's somebody in this State or somebody in that province who has the authority, so every signatory must have the authority.
It doesn't strike me as not reasonably related to international obligations.
Donald B. Verrilli Jr: --All right.
But -- but here, Mr. Chief Justice, this is a valid exercise of the treaty power, and there is no daylight between the implementing legislation and the obligations that the Petitioner concedes are valid.
Chief Justice John G. Roberts: No, no.
I know your -- I know the case--
Donald B. Verrilli Jr: And therefore -- and therefore, that may be a question that the Court would have to answer in a different case.
But this case doesn't present the opportunity to answer that question.
Chief Justice John G. Roberts: --So the -- the purpose of my hypothetical was try to find out if there's any situation in which you believe an erosion or intrusion by the Federal Government on the police power could be a constraint against an international treaty.
Donald B. Verrilli Jr: There -- there may be an outer bound, but this case is nowhere close to it.
And -- and it isn't -- it can't be a “ too local ” exception to the treaty power, which Petitioners argue.
Chief Justice John G. Roberts: Well, it seems to me that if you say there may be an outer bound but this case isn't one of them, you're subjecting yourself to the same criticisms that have been leveled against the other side, that you're proposing a case-by-case evaluation with respect to each treaty.
Donald B. Verrilli Jr: No.
I think, Your Honor, that the question here is whether this legislation validly -- it validly implements a valid treaty.
The treaty is concededly valid.
The legislation is concededly valid on its face.
Justice Antonin Scalia: I'd like to -- I'd like to explore that, your proposition that there's no daylight between the treaty itself and the implementing legislation.
It seems to me there -- there's a lot of daylight between the two.
Let's take -- and I pick this example not because it's controversial, but because it relates to an area where the Federal government has never been thought to have authority, namely family law.
There are no, you know Federal marriage, Federal divorce, Federal adoption.
It's all been State law.
Let's assume that an international treaty is approved by two-thirds of the Senate and the president which requires States to -- to approve same sex marriage.
Now, if -- if that were a self-executing treaty, same sex marriage would have to be approved by every State.
If it is not self-executing, however, it will be up to Congress to produce that result, and Congress would do it or could do it at least by having a Federal marriage law.
And then you would have to have a Federal divorce law and, I suppose, a Federal adoption law.
I think there is a big difference between just doing it through a self-executing treaty and dragging the Congress into -- into areas where it has never been before.
I think there is daylight between the treaty and requiring the treaty to be implemented in the fashion that you assert is necessary here.
Donald B. Verrilli Jr: Your Honor, I'd like to make a structural point and then a specific point about this case.
The structural point, Justice Scalia, is this: If it is the case, as Your Honor's hypothetical seems to concede and as I believe Petitioner concedes, that a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty that is -- that has the same approval of the President, the same two-thirds ratification, and the additional structural protection of passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do.
It has to be the case.
The power, if the--
Justice Antonin Scalia: I don't think it has to be the case.
I think there -- there's a great difference between requiring the states by a self-executing treaty to permit same sex marriage and dragging the Federal government or allowing the Federal government to enter into this whole field of marriage, divorce, adoption, family law, where the Federal government has never been.
Donald B. Verrilli Jr: --Well, with respect, now the point with respect to this treaty.
I don't think that, with all due respect, there is any daylight here with respect to this treaty.
Section 229(a) does precisely what the treaty obligates the United States government to do, and I think the notion that the treaty obligation can be satisfied by relying on the States to enforce their assault laws, which I think is the core of my friend's argument here, is directly contrary to the history of the framing--
Justice Stephen G. Breyer: It is?
That's the part that I can't yet get my mind to these dramatic questions of whether here the local police power or in some other case some other inherently State power make a treaty beyond the power of the Federal government to enter into.
It's a very big question.
But I'm not there yet.
And the reason I'm not there is because there's some words in this treaty called “ other peaceful purpose ”, and we have to interpret those words and the same words are in the statute.
And my question to you is: What reason is there to think that those matters on List A fall within those words?
What is List A?
It's infinitely long.
A few things on it are in Holmes' opinion in Peasley, a great case on attempted murder where he talks about paying a small boy to move a barrel of kerosene with a candle in it alit, so that it will burn down a barn after a few hours.
The kerosene is a chemical.
He talks about a case where a person went to a racetrack and gave a horse a poison potato.
He talks about a case involving somebody else trying to light a match, which is a chemical, and setting fire to a haystack.
We can all think sadly of athletes, Lance Armstrong, at least accused of unlawfully taking drugs.
I mean, why do we think matters of List A fall within those words, outside the words “ other peaceful purpose ”, even though they're unlawful?
And by the way, did anyone say to the drafters of the convention -- I found nothing in this brief on the point -- or did anyone tell Congress that poison potatoes, drug-enhancing, performance-enhancing drugs, the example that Justice Alito used last time, you give vinegar to a goldfish -- I mean, these are all chemicals not in the annex, but they are chemicals.
And they are absolutely nothing to do with chemical weapons.
And why do we think that we have to get beyond that fact?
Donald B. Verrilli Jr: --This is a very important point here, and it gets I think to the heart of what the national interest is in this case with respect to this treaty and this implementing legislation.
And the harm inheres in the process of line drawing.
What the Petitioner is asking as a rule of either constitutional law or statutory construction is that courts, on a case by case basis, after the fact made ad hoc judgments about whether they--
Justice Stephen G. Breyer: No, no.
There's an easy way out of that.
All we do is say the chemicals involved are the chemicals in the annex.
But you're not prepared to say that, I guarantee it.
Donald B. Verrilli Jr: --No -- no, I'm not.
Justice Stephen G. Breyer: Okay.
Now, we're outside the annex.
And I guess once we get outside the annex, we either have to draw lines or we have to say, well, this encompasses the poison potato, the poisoned goldfish, the small boy with the candle, the -- for performance-enhancing drugs.
I would say judges are here to draw lines, and between throwing all those things into it or drawing lines, it's better to draw a few lines.
Donald B. Verrilli Jr: We can -- we can talk about hypotheticals, but the key point about them is that they're hypothetical.
Justice Stephen G. Breyer: No, no.
These are real cases, by the way.
The poison potato was in fact--
Donald B. Verrilli Jr: The vinegar and the goldfish is not a real case, and I would submit that de minimis non curat lex.
Justice Samuel Alito: They're not real -- they're not real cases because you haven't prosecuted them yet.
If you told ordinary people that you were going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted.
It's -- it -- it's so far outside of the ordinary meaning of the word.
Justice Sonia Sotomayor: If her child had died--
Justice Samuel Alito: This statute has an enormous -- an enormous breadth, anything that can cause death or injury to a person or an animal.
Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?
Donald B. Verrilli Jr: Your Honor, I understand the point.
Justice Samuel Alito: On Halloween we gave them chocolate bars.
Chocolate is poison to dogs, so it's a toxic chemical under the chemical weapons--
Donald B. Verrilli Jr: I think de minimis non curat lex would take care of that, but this -- there is serious -- this is--
Justice Stephen G. Breyer: --There's chocolate all over the place.
Justice Antonin Scalia: Do horses eat potatoes?
I didn't know horses ate potatoes.
Donald B. Verrilli Jr: --This is serious business.
With all due respect, the line that the Petitioner is asking--
Justice Stephen G. Breyer: No, I'm not -- I want your answer to the line -- my question was a question to get your answer.
And the answer that I wanted you to address yourself to is the problem of once you depart from the annexes in defining the chemicals, you throw into it a list a thousand miles long.
And we can tell joke after joke, but it's not a joke that it's so easy to make up examples that seem to have nothing to do with the problem of chemical weapons like the Syrian problem, nothing to do with that.
Donald B. Verrilli Jr: --I understand that, Your Honor, but the law--
Justice Stephen G. Breyer: So what is your answer?
That's what I want to know.
Donald B. Verrilli Jr: --If you will permit me to answer the question this way: The line that the Petitioner is asking courts to draw is whether the particular use is warlike or whether it constitutes a peaceful purpose under this convention and under the implementing statute.
Well, the very -- one of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful uses and warlike uses.
And this phrase, “ peaceful uses ” is not only in the Chemical Weapons Convention, it's in the Nuclear Nonproliferation Treaty, and we're engaged in very sensitive negotiations right now under the Nuclear Nonproliferation Treaty trying to draw exactly the same line.
And it would be terribly unfortunate, I would submit, if the Court were to announce in the context of this case, as Petitioner is asking, a definition of what warlike constitutes that could have an unfortunate bearing on those--
Justice Stephen G. Breyer: Why don't you tell us -- can you tell us what the line is that we're trying to draw?
Donald B. Verrilli Jr: --And the -- the -- the framers of the convention and Congress in implementing the convention made a judgment that there needs to be a comprehensive ban and that you can't be drawing these kinds of lines because you can't--
Justice Elena Kagan: Well, General, could I ask why that is?
I mean, because this -- this Convention and the implementing legislation is very broad and it's broad because it applies to a very large category of weapons and it applies to a very large category of uses, of conduct.
So what were they thinking about, about why they wanted these very broad categories, why it's not more limited with respect either to the chemicals or to the conduct?
Donald B. Verrilli Jr: --Well, with respect to the chemicals, I think they made the judgment because you can't predict in advance how chemicals are going to be used and how toxic they will be in particular combinations and how dangerous they will be in particular combinations and therefore you need a comprehensive definition.
Justice Stephen G. Breyer: Well, look, also if you' telling me I am attempting to draw the line.
That's just what I was going to do.
And if you're saying it's against the national security interest, which is the first time I've heard that, that it is the national interests -- against the national interests of the United States for me to attempt to draw such a line, then I guess the State Department better file a brief explaining why or you ought -- or why you -- why you want to push this case or -- I mean, I'm -- is that what you're telling me, that if I write the opinion that I think the law requires me to write that I somehow am hurting the national security interests of the United States?
Donald B. Verrilli Jr: Well, I think there is a -- I think there is a real risk in courts getting involved in defining the line between warlike and peaceful purposes--
Justice Stephen G. Breyer: You're the one--
Donald B. Verrilli Jr: --and the meaning of the convention when the -- when the convention is purposely drafted broadly.
And there -- there are additional risks in terms of this -- the very act of bringing this process of line-drawing to bear; case-by-case, ad hoc judgments about what constitutes a violation and what doesn't is going to undermine the ability of our negotiators into -- to make treaties in the future because they are--
Justice Anthony Kennedy: But you did not give the line to the Chief Justice's question where there was a treaty that intruded on the Federal structure.
You can have a treaty where the President is required to set aside any State law that in his view contravenes a national interest.
That's a structure problem.
You've -- you've given us no -- no principle the other way.
Donald B. Verrilli Jr: --Well, I -- what I think it would, Justice Kennedy, would suffice to decide this case, were the Court to conclude that the “ too local ” limit that the Petitioner is advocating here as an as-applied, case-by-case “ too local ” limit is not one that is inconsistent with the constitutional structure because if you go back to the framers, it is clear from the era of the framing that the framers intended to give the national government the power using--
Justice Anthony Kennedy: Well, is it your precept, then, that a treaty cannot be inconsistent with our constitutional structure?
Donald B. Verrilli Jr: --This Court has said that the -- this Court has said that, in dictum, repeatedly, but it has said that the -- the treaty -- there's a question in a treaty power case of whether the subject matter of the treaty is a proper subject for a treaty.
That's a question the Court can ask.
And -- and although I'm not prepared to draw a specific line here today, there -- there may well be a line to be drawn.
But here, the Petitioner has conceded and I think all of us would agree, this is the proper subject of the treaty.
Chief Justice John G. Roberts: But there are a lot of treaties, particularly I think Justice Alito pointed out, after the World War II era where you have international conventions affecting everything.
We have international conventions on the abduction of children, international conventions that -- human rights.
They cover a vast swath of -- of subject matter.
And it seems to me the only thing you're saying that is a limit on what the treaty power can be as a source for is some determination, no more -- less -- no less arbitrary than the lines other people are asking us to draw between what's appropriate under the treaty power and what's not.
And I just would like a fairly precise answer whether there are or are not limitations on what Congress can do with respect to the police power.
If their authority is asserted under a treaty, is their -- is their power to intrude upon the police power unlimited?
Donald B. Verrilli Jr: If the -- if the treaty -- well, the way I would answer that, Mr. Chief Justice, is if the treaty is valid--
Chief Justice John G. Roberts: Okay.
The treaty is valid.
Donald B. Verrilli Jr: --then implementing legislation that doesn't go beyond the treaty is valid even if it addresses a subject that would otherwise be within the police power of the States.
Chief Justice John G. Roberts: Okay.
Donald B. Verrilli Jr: That is the judgment the framers made and that's what -- that's this case.
And so, because the treaty is valid, the Petitioner's concede that the treaty is valid, this statute implements the treaty word-for-word implementation of the obligations that--
Chief Justice John G. Roberts: So you would rather have the Court determine, if we're concerned about the intrusion on the police power, whether treaties are valid or not than whether -- determine whether particular implementing legislation is valid or not.
Donald B. Verrilli Jr: --No.
I think, Your Honor, that because it is conceded in this case that the treaty is valid, and the Petitioner hasn't elaborated any argument or any principle that would allow this Court to make a judgment about when an exercise of the treaty power is valid and when it isn't, that you've got to take as a given in this case that the treaty is valid.
Chief Justice John G. Roberts: I know this case.
The point of the hypothetical is I'm trying to get your general principle.
I can imagine treaties that you would say are within the treaty power, again, particularly in the post-World War II era, but that could give rise to implementing legislation that I think would be extraordinary from the point of view of the framers and the power that it gave Congress to intrude upon State authority.
Donald B. Verrilli Jr: So there is a structure of limitations, you know, as I said earlier.
The two-thirds ratification requirement is real with respect to this.
One of the treaties Your Honor just referred to, the U.N. Convention on Civil and Political Rights, of course, when the Senate ratified it, it did use its power to make reservations to preserve our Federal system.
So that operated in exactly the manner that the framers intended there to protect, to safeguard the interests of federalism.
And there are, you know, there are about 1,000 ratified treaties on the books right now and we don't have the Congress using the treaty power to -- to usurp the role of the States--
Justice Stephen G. Breyer: --Oh, no.
That isn't the problem.
Chief Justice John G. Roberts: It's -- it's kind of question begging.
I mean, the whole point is that some people think we do have exactly that in this case.
Now, usually when we have a case that implicates significant and serious bilateral concerns, we get a lot of briefs and all that from our -- our treaty partners.
Is -- is there any concern that's been expressed in any concrete way by them about whether Mrs. Bond is prosecuted?
Donald B. Verrilli Jr: --I doubt that, Your Honor, because--
Chief Justice John G. Roberts: No, no.
So nothing in--
Donald B. Verrilli Jr: --Nobody -- no -- nobody would -- we're not saying -- and I don't think anybody would say that -- that whether or not Ms. Bond is prosecuted would give rise to an international incident.
The question is whether Congress has the authority to pass a comprehensive ban.
Now, there may, of course, be applications of that comprehensive ban that don't advance the national interest in a profound or poignant way; we understand that.
But the question is whether Congress can pass a comprehensive ban implementing a treaty.
Justice Stephen G. Breyer: That is the question.
Justice Elena Kagan: And, General, don't we have an amicus brief from almost all of the legal counsels of the State Department, Republican and Democrat, talking about how if Petitioner's argument were accepted, it would severely damage the United States' ability to enter into and to negotiate treaties.
Donald B. Verrilli Jr: That's right.
And that -- and that's true, it's -- and that's certainly true.
Chief Justice John G. Roberts: --I'm sure that the people who've worked in the national branch of government, particularly for the State Department, would like to have as much authority as they can get to negotiate treaties.
We're concerned about limitations on other.
Do we have any briefs from State legislatures, State authorities, concerning intrusion on their prerogatives?
Donald B. Verrilli Jr: Your Honor, this convention is a convention that all but four nations on Earth have signed.
The legislation that we have enacted is model legislation that over 120 other nations have enacted as well.
Justice Samuel Alito: --Whenever -- when this Court has issued decisions in recent years holding that there are some limits on Congress's power, cases like Lopez and Morrison and City of Boerne, there have been legal commentators who have written articles saying that could be circumvented to -- through the use of the treaty power.
Do you agree with that?
Donald B. Verrilli Jr: I don't think there's a yes or no answer to that.
I think that -- because I don't think it would be -- the question would be: What does the treaty power encompass?
It wouldn't be a circumvention if this is something that could be constitutionally done under the treaty power, but--
Justice Samuel Alito: Could you -- all right.
I'll take back the word “ circumvention ”.
Could you reach the opposite result?
Could it -- could Congress regulate the possession of a gun within a school zone by entering into a treaty that authorizes such legislation?
Donald B. Verrilli Jr: --I think the question in that case would be whether the treaty is a valid exercise of the treaty power.
Justice Stephen G. Breyer: Oh, it is.
That is the problem.
There is an underlying -- I don't mean to cut you off, but at some point you seem not to see a problem that I think I see.
And the problem underlying it, if you get into the treaty area is this: Given the power, as there is in Medellin's majority, to have some self-executing treaties, in principle your position constitutionally would allow the President and the Senate, not the House, to do anything through a treaty that is not specifically within the prohibitions of the rights protections of the Constitution.
That's Missouri v. Holland.
And I doubt that in that document the Framers intended to allow the President and the Senate to do anything.
Now, you ask us now to say whether the answer to that question is yes or no.
We still have a democracy, in other words, of which the House is part.
Now, if you carry it to an extreme, that's what you are, that's where you are, and I am worried about that and I think others are, too.
So I had asked you: Isn't there an easier way to deal with this case?
And you tell me: No, no, because we will interfere with some problem of foreign affairs that was never mentioned in any brief, or at least hit me for the first time when you said it.
Now, there you have an expression of my uncertainties at the moment, and any way you want to reply to that would be helpful.
Donald B. Verrilli Jr: I understand the point, Justice Breyer, I do.
I understand that there is something that seemed attractive to think about this as a question of statutory construction.
What I'm trying to point out is that it's not as easy as it seems, that there are real risks to trying to draw a line of that kind.
And yes, that does -- I understand that.
That does raise the stakes some, I understand that.
But I think that risk is real, and I think that risk is real, the risk that the State Department legal advisor's brief pointed out is real of undermining our ability--
Justice Ruth Bader Ginsburg: General Verrilli, before your time is out, you haven't answered directly why the Bill of Rights does constrain the treaty power, the implementation of it, Reid v. Colbert?
Why is the Bill of Rights different from the federalism concern that the Court has expressed in many cases, when you say, yes, there is a check, the Bill of Rights is a check, but not the Tenth Amendment?
Donald B. Verrilli Jr: --There is a historical answer to that question, Justice Ginsburg, which is that that's how the Framers understood it.
I think that's clear from what Hamilton said in the -- in the quotes that we have in our brief, and others of the Framers understood that that's where the line would be.
And I think the reason for that is that the treaty power is itself a great and substantial independent power of the national government.
And it is not constrained by a “ too local ” limitation.
That is the lesson of the era of the framing, that there is a not a “ too local ” limitation on the exercise of the treaty power.
And therefore, while--
Justice Antonin Scalia: All of those quotes pertain to self-executing treaties.
Yes, there is no limitation on what -- what the President and the Senate can impose as a self-executing requirement, namely that the States must give back to British citizens property that they confiscated or whatever else.
But it's a different question whether a treaty can expand the power of the Federal Congress into areas that it has never been before.
That's a separate question.
And neither Hamilton nor any of the other quotes that you refer to address that question.
Donald B. Verrilli Jr: --Your Honor, so long as the treaty -- it's a valid exercise of the treaty power, I think a fortiori if all you do is implement the treaty in haec verba, it's a valid exercise of Congress' power.
And I will say, I said earlier that this is serious business.
I understand that principles of federalism are serious business also, but federalism is a two-way street.
And with respect to the exercise of the treaty power, the Framers made a judgment that this power was going to be exclusively in the hands of the national government.
And it needed to be exclusively in the hands of the national government in order to ensure that the United States could be a full sovereign on the world stage.
Now, it is true that the subject matter of treaties is different now than it was at the time of the founding, but the Framers understood that.
They were careful not to impose subject matter limitations on the treaty power because they were wise enough to know they could not foresee what might be important for the United States to be able to negotiate about on a world stage in order to participate fully as a sovereign.
And the Chemical Weapons Convention is a deeply apt illustration of exactly why the Framers were wise in ensuring that there were not subject matter limitations on the exercise of the treaty power.
The Chemical Weapons Convention -- the United States' leadership in the Chemical Weapons Convention has made a big difference in ensuring that this norm, which is in our national interests, our foreign relations interests, and our national security interest, is a norm that the nations of the world have agreed to and that we are then in a position to have leverage to insist that the nations of the world abide by it.
It is leverage we are trying to exercise right now.
It is critically important, and I respectfully submit that the line that the Petitioner is asking this Court to draw is not consistent with the intent of the Framers, with this Court's precedent or with the national interests that I have described.
Chief Justice John G. Roberts: Thank you, General.
Mr. Clement, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONER
Paul D. Clement: Thank you, Mr. Chief Justice.
Just a few points in rebuttal.
First of all, the Senate's role in the ratification of treaties cannot be a sufficient political check, and one reason is that sometimes the precise role they play as a check is to make a treaty non-self-executing.
And so, to take Justice Scalia's hypothetical example of an international treaty that purported to regulate marriage rights, one thing that the Senate very well might do in that case is to say, well, we will ratify it, but we're going to make sure it's non-self-executing and maybe we will use our spending power or something to get the States on board, but we are not just going to impose a national solution.
So it doesn't make any sense to say that a non-self-executing treaty necessarily, even if it's valid, guarantees the validity of the enacting legislation, because some of the reason that you make a treaty non-self-executing is to preserve federalism.
A second point is to respond to the argument, which I think I've already explained why it's not correct, but it is the suggestion that there is no daylight between the convention and the statute.
There is huge daylight, and the daylight is precisely whether it affects individual conduct and how it affects individual conduct.
With all respect, everything on Justice Breyer's List A is not stuff that I think implicates the convention at all.
But yet under the government's unwavering theory that you can't make any limitations on the statute, that's all covered by the statute.
There's your daylight.
Now, I would respectfully suggest that our statutory construction argument is one way out of this.
I think that you have to understand the way that “ peaceful ” is used in the statute is essentially a term of art.
I would analogize it to a situation where two scientists in Antarctica get in a fistfight.
Okay, that's not conduct we condone, but I don't think we've violated our pledge to reserve Antarctica for only peaceful purposes.
And that's the same way we would like you to interpret this statute.
Now, the government says you can't do that because that's going to mess up what's going on in Syria.
With all due respect, I assume that the issue in Syria is whether or not the nation state of Syria is doing something that would violate the convention if, contrary to fact, they were signatory to this convention.
So if you want to make clear that you're only talking about individual conduct, I think you can solve that whole problem right there.
But if I'm wrong and the only way, as the government assures you that you can make this legislation work is to have it be in exercise the police power, well, then the answer is that the legislation is simply unconstitutional.
Justice Elena Kagan: Can I just ask you, Mr. Clement, and it's a variant of the hypothetical I gave you before, but it focuses more on your statutory point, the peaceful purposes.
Suppose that Ms. Bond used sarin gas and sent it through the ducts of Haynes' house; would you say that that's a peaceful purpose?
Paul D. Clement: I would say it's not, but I think it has to do more with the particular qualities of sarin gas, the fact that it's on Schedule A, the fact that nobody can possess that for any lawful use.
And what makes something like vinegar or even potassium dichromate different is what puts it over the ledge from being an ordinary chemical to a chemical weapon is precisely its use and its use alone.
Now, Justice Kagan, you asked a great question: What was Congress thinking when they did this?
I think, with respect, the Congress wasn't focused on this issue at all.
If you look at the legislation they passed to implement this, the chemical industry and others put in front of them the possibility that there was a Fourth Amendment problem with the inspections of chemical production facilities that were authorized under the convention.
When Congress had the constitutional problem in front of it, they had all sorts of provisions to deal with that constitutional concern.
Now, the future Ms. Bonds of the world didn't have quite the same lobbying resources as the chemical industry, so they didn't avert to this problem.
And that's precisely why some kind of clear statement rule or the like would make perfect sense in this to make sure Congress doesn't exercise the police power when all it thinks it's doing is implementing a treaty.
The last thing is just to say about the State Department legal advisor's--
Justice Sonia Sotomayor: A clear statement about the treaty -- I'm sorry.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.