The Supreme Court decided a case but missed an opportunity this month. The opportunity missed was to clarify, once and for all, that treaties do not increase federal power, and thereby to close a backdoor way to create an abortion right after Roe is overturned.
The case was Bond v. United States.
Bond was prosecuted for trying to injure a woman who was having an affair with her husband. Bond tried to do so by using some chemicals that are toxic to humans. She was discovered by government authorities and prosecuted under a federal statute that makes it a crime to use a “chemical weapon.”
The Supreme Court unanimously concluded Bond could not be prosecuted under the statute. The majority held that the statute was not intended to go this far, to reach conduct that is traditionally subject to local – not national – law enforcement. Rather the statue was intended to prohibit acts of chemical warfare and terrorism.
So far, so good. The Court’s decision, interpreting the meaning of a federal law, is sound. But the missed opportunity was to examine – and to clarify – whether the federal law – the Chemical Weapons Implementation Act of 1998 – had been properly enacted in the first place. The question the Court should have answered, as the concurring opinions noted, was – if the Act had prohibited Bond’s conduct, would it have been constitutional?
The Act was passed by Congress in 1998 to implement – or to put into legal force – the obligations of a treaty that U.S. entered into with other nations in 1997 to prohibit the use of chemical weapons. Like every federal law, however, it has to be based upon a power that the Constitution grants to Congress. The Constitution does not grant the power to Congress to make local criminal law. Does Congress gain such power if a treaty says that it does? If so, the President and the Congress can, in effect, amend the Constitution without the necessity of following the procedures the Constitution itself lays out for amendment, i.e., ordinarily, two-thirds of both houses of Congress to call for an amendment that is then ratified by three-fourths of the states.
The way this could play out for pro-life Americans is as follows: imagine the day (which will certainly come) when Roe is overruled, meaning it is absolutely clear there is no right to abortion, implied or otherwise, in the Constitution; could the President and Congress then enter a treaty requiring the U.S. to recognize abortion as a “right” and then “implement” the treaty through a law requiring the states to recognize that “right”? If the power of Congress can be increased through the making of a treaty, the answer would be, yes.
And though this may sound far-fetched, pro-abortion law professors have long argued that this is possible (i.e., that both treaties and the Constitution are the “supreme law of the land”).
Thus, the Bond case provided a splendid opportunity for the Supreme Court to make it clear that the powers of the President and of Congress are limited to those specified in the Constitution and cannot be increased by treaty. On June 2, they muffed the chance to do so.