DOJ: Treaties trump Constitution?

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**Spacemanvic**

Wonder what they got on the Justices via NSA snooping to even bring this to court? This DOJ is really pushing boundaries here......

Ted Cruz criticizes DOJ for arguing international treaty can trump the Constitution[u]

Justice Department attorneys are advancing an argument at the Supreme Court that could allow the government to invoke international treaties as a legal basis for policies such as gun control that conflict with the U.S. Constitution, according to Sen. Ted Cruz, R-Texas.

Their argument is that a law implementing an international treaty signed by the U.S. allows the federal government to prosecute a criminal case that would normally be handled by state or local authorities.

That is a dangerous argument, according to Cruz.

"The Constitution created a limited federal government with only specific enumerated powers," Cruz told the Washington Examiner prior to giving a speech on the issue today at the Heritage Foundation.

"The Supreme Court should not interpret the treaty power in a manner that undermines this bedrock protection of individual liberty,” Cruz said.
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In his speech, Cruz said the Justice Department is arguing "an absurd proposition" that "could be used as a backdoor way to undermine" Second Amendment rights, among other things.

The underlying case, Bond v. United States, involves a woman charged with violating the international ban on chemical weapons because she used toxic chemicals to harass a former friend who had an affair with her husband.

Under the Constitution, such an offense would be handled at the state level. In Bond's case, the federal government prosecuted her under the Chemical Weapons Convention Implementation Act.

That law implements the Chemical Weapons Convention, the international treaty Syrian dictator Bashar Assad is accused of violating in that country's vicious civil war.

"The problem here is precisely that Congress, rather than implementing the treaty consistent with our constitutional system of federalism, enacted a statute that, if construed to apply to petitioner’s conduct, would violate basic structural guarantees and exceed Congress's enumerated powers," according to Bond's lawyers.

The Judicial Crisis Network's Carrie Severino said the Bond case could have ramifications for many other issues.

"If the administration is right, the treaty power could become a backdoor way for the federal government to do everything from abolishing the death penalty nationwide, to outlawing homeschooling, to dramatically curtailing the states' rights to regulate abortion," she told the Washington Examiner.

The Judicial Crisis Network is a conservative legal activist group.

http://washingtonexaminer.com/ted-cruz-criticizes-doj-for-arguing-international-treaty-can-trump-the-constitution/article/2538205#

**whembly**

meh... it seems we go through this every year. o.O

The US Constitution is rather explicit on passing treaties.

If any government agency enforces any un-sanctioned treaties, court challenges would be submitted in rapid session. Keep an eye on this one.

**Spacemanvic**

whembly wrote:
meh... it seems we go through this every year. o.O

The US Constitution is rather explicit on passing treaties.

If any government agency enforces any un-sanctioned treaties, court challenges would be submitted in rapid session.

But should the court rule the issue constitutional, what other recourse is left to us......

**Ahtman**

Ted Cruz criticizes

0/10 Would not read again.

**whembly**

Spacemanvic wrote:
whembly wrote:
meh... it seems we go through this every year. o.O

The US Constitution is rather explicit on passing treaties.

If any government agency enforces any un-sanctioned treaties, court challenges would be submitted in rapid session.

But should the court rule the issue constitutional, what other recourse is left to us......

I don't see how the court would rule it constitutional. Seems to be a jurisdictional case than anything.

**d-usa**

Ted Cruz, Tea Party champion of the slippery slope argument.

**whembly**

Ahtman wrote:
Ted Cruz criticizes

0/10 Would not read again.

d-usa wrote:
Ted Cruz, Tea Party champion of the slippery slope argument.

So... should've the Feds gotten involved in this case and used International Treaties as justification?

**Spacemanvic**

d-usa wrote:
Ted Cruz, Tea Party champion of the slippery slope argument.

Cruz isnt the one approaching the court with the request though......

**Frazzled**

International treaties that do not pass Constitutional muster or unconstitional. The government cannot use treaties to get around the Bill of Rights. I'm sure thats ancient settled law.

**d-usa**

whembly wrote:
Spacemanvic wrote:
whembly wrote:
meh... it seems we go through this every year. o.O

The US Constitution is rather explicit on passing treaties.

If any government agency enforces any un-sanctioned treaties, court challenges would be submitted in rapid session.

But should the court rule the issue constitutional, what other recourse is left to us......

I don't see how the court would rule it constitutional. Seems to be a jurisdiction case than anything.

The lower court already ruled that the treaty is valid and nothing in the treaty is unconstitutional, so there is no constitutional issue there. Of course this also goes against the argument that Cruz is making, since he is trying to argue that enforcement of a treaty that has no constitutional conflict what-so-ever would somehow set a precedent that would allow the federal government to prosecute people under other treaties that would be unconstitutional in their scope (such as treaties dealing with 2nd Amendment issues). And the defendant never argued that the treaty itself was invalid. Her only argument was that the federal government had no business prosecuting something that the state could have handled. The most recent lower court decision seems to disagree:

In sum, Congress passed the Act, which is constitutionally sound legislation, to implement the Convention, a constitutionally sound treaty. Ms. Bond's appeal generally to federalism, rather than to a workable principle that would limit the federal government's authority to apply the Act to her, is to no avail.

The real culprits here are three. First, the fact pattern. No one would question a prosecution under the Act if the defendant were a deranged person who scattered potassium dichromate and 10-chloro-10H-phenoxarsine, the chemicals which Ms. Bond used, on the seats of the New York subway cars. While that defendant could be punished under state law, applying the Act there would not offend our sensibilities. The application, however, to this "domestic dispute," somehow does.

Second, the "use" of chemical weapons as prescribed in the Act has an admittedly broad sweep. See Maj. Op. at 154 n. 7; Chemical Weapons Convention, art. VII.1(a), 32 I.L.M. at 810 (requiring each signatory nation to "[p]rohibit natural and legal persons anywhere on its territory ... from undertaking any activity prohibited... under this Convention, including enacting penal legislation with respect to such activity"). Because the Act tracks the Convention, however, Congress had the power to criminalize all such uses. Perhaps, in carrying out the United States' treaty obligations, Congress could have created a more expansive exception for "peaceful purposes," but it did not.

Lastly, the decision to prosecute is troubling. The judgment call to prosecute Ms. Bond under a chemical weapons statute rather than allowing state authorities to process the case is one that we question. But we see that every day in drug cases. Perhaps lured by the perception of easier convictions and tougher sentences, prosecutors opt to proceed federally. See Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. Cal. L.Rev. 643, 668-75 (1997). There is no law against this, or principle that we can call upon, to limit or regulate it.

While the Majority opinion explores arguments regarding the limits of the Treaty Power, I find Ms. Bond's argument to be much more limited in scope, although equally unsupportable. I agree that we should affirm the judgment of the District Court

**Dreadclaw69**

Frazzled wrote:
International treaties that do not pass Constitutional muster or unconstitional. The government cannot use treaties to get around the Bill of Rights. I'm sure thats ancient settled law.

Surely the DoJ and our POTUS with a legal background (in Constitutional law no less) should be more than well aware of this

**Frazzled**

d-usa wrote:
whembly wrote:
Spacemanvic wrote:
whembly wrote:
meh... it seems we go through this every year. o.O

The US Constitution is rather explicit on passing treaties.

If any government agency enforces any un-sanctioned treaties, court challenges would be submitted in rapid session.

But should the court rule the issue constitutional, what other recourse is left to us......

I don't see how the court would rule it constitutional. Seems to be a jurisdiction case than anything.

The lower court already ruled that the treaty is valid and nothing in the treaty is unconstitutional, so there is no constitutional issue there.

You said lower court then you said said no issue. Thats funny. It aint over until its over.
having said that, whats the actual treaty?

**d-usa**

whembly wrote:

d-usa wrote:
Ted Cruz, Tea Party champion of the slippery slope argument.

So... should've the Feds gotten involved in this case and used International Treaties as justification?

The actually used federal law passed by a US congress as justification. As for the "should the Feds have gotten involved" question, I refer to the above court statement.

Now if you want to defend Cruz's statement that prosecution under the application of a federally passed and constitutionally valid treaty will somehow lead to us prosecuting people under other non-valid and non-constitutional treaties, be my guest.

**Frazzled**

Cruz has an excellent point. The fed can't use a treaty to enact unconstitutonal law. However, that may or may not be the case here.

Congress may pass criminal laws using a variety of constitutional bases.

Congressional language implementing a treaty, if passed by Congress and otherwise constitutional may still be so here.

Did they seriously try to prosecute someone on a chemical weapons treaty? WTF???

**d-usa**

Frazzled wrote:
d-usa wrote:
whembly wrote:
Spacemanvic wrote:
whembly wrote:
meh... it seems we go through this every year. o.O

The US Constitution is rather explicit on passing treaties.

If any government agency enforces any un-sanctioned treaties, court challenges would be submitted in rapid session.

But should the court rule the issue constitutional, what other recourse is left to us......

I don't see how the court would rule it constitutional. Seems to be a jurisdiction case than anything.

The lower court already ruled that the treaty is valid and nothing in the treaty is unconstitutional, so there is no constitutional issue there.

You said lower court then you said said no issue. Thats funny. It aint over until its over.
having said that, whats the actual treaty?

The case is Bond vs. United States, and the federal law that is being applied is the Chemical Weapons Convention Implementation Act of 1998.

And nobody in this case, including the defendant and her lawyers, is arguing that the treaty or it's implementation is unconstitutional. The only legal question is "should the Federal government be able to prosecute this case".

It's a jurisdictional issue, and has nothing to do with anything Cruz is arguing.

Edit: wrong word

**Frazzled**

No it can be related to what Cruz is arguing. The Fed can't use a treaty to implement a law that otherwise would violate the Constitutional under spearation of Powers. However, there are many bases that a law can be implemented under the constutiton. In this instance a criminal law could be passed as part of the implementation of the treaty. That criminal law could be passed regardless of a treaty, and if constitutional under that circumstance, is just fine.

The case though sounds like a REALLY BAD APPLICATION OF THE LAW. But typical Holder.

**Spacemanvic**

It's a bad application of law that then sets precedent for the court.

**d-usa**

Spacemanvic wrote:
It's a bad application of law that then sets precedent for the court.

Nothing about the treaty violates the constitution. Absolutely nothing. Not even the defendant is arguing that.

The treaty itself is not even the subject of this case. The legal argument has nothing to do with the question of "is this treaty constitutional".

The only legal argument is that the defendant claims that the federal government should not be able to prosecute her under this constitutional law because it should fall to the State to prosecute her.

Having the SCOTUS decide "the federal government did have jurisdiction to apply this constitutional law" does not set the precedent that Cruz is arguing, which is "if the federal government has jurisdiction to apply this constitutional law then they will be able to apply unconstitutional laws in the future".

**Ouze**

d-usa wrote:
Nothing about the treaty violates the constitution. Absolutely nothing. Not even the defendant is arguing that.

Well, as Mr. Cruz knows, no one ever got on the news by being reasonable and making sense.

**Gentleman_Jellyfish**

d-usa wrote:
Having the SCOTUS decide "the federal government did have jurisdiction to apply this constitutional law" does not set the precedent that Cruz is arguing, which is "if the federal government has jurisdiction to apply this constitutional law then they will be able to apply unconstitutional laws in the future".

Pssshhh that's just crazy talk! If you have nothing to hide you have nothing to fear! This is all great news!

**purplefood**

Is Ted Cruz not the crazy one?

**DogofWar1**

Eh, these are two different issues.

The issue in this case is whether prosecutors can charge someone under a treaty for a federal crime, while they can also be charged with a state crime.

The issue Cruz is talking about would be whether one could use a treaty to infringe on someone's rights.

As d-usa has been saying, the former deals with a constitutional treaty, while the latter deals with one that violates the US constitution. It's a classic situation where even if the USSC said the DOJ could prosecute people federally under treaties when they could also be prosecuted at the state level, they would definitely not go so far as to say treaties overrule rights.

As for the situation specifically in this case, it sounds like the Court is following the "state vs. federal prosecution on drug issues" precedent, that is, prosecutors can choose whether they prosecute federally or at the state level.

There is an interesting question concerning whether federal prosecution under a treaty should be considered the same as federal prosecution under a federal statute. My initial feelings are that, because both had to go through Congress, their functional similarities would allow you to follow the same principles.

**d-usa**

And just to be clear: I do think that the question before the Supreme Court is perfectly valid, and we should consider if it is right to charge somebody on the federal vs state level just because it might be easier for the prosecution that way.

My only problem is that the garbage that Cruz is spewing has nothing to do with this.

**streamdragon**

Wouldn't it largely revolve around whether the poison being used was being done at the same time as the mail she stole? Mail tampering is, by nature, a federal crime isn't it? Not a state one?

Obviously, I am no lawyer.

**sebster**

This story feels really familiar, chemical weapons treaty and a constitutional challenge. Didn't this happen a couple of years ago? Are we reading old news here?

EDIT - ah, not old news but the continuation of a case that first hit the Supreme Court in 2011. At that point it was found that a person had standing to appeal a decision on grounds of jurisdiction. Then the case went down to the Third Circuit and had now bounced back up again.

Frazzled wrote:
International treaties that do not pass Constitutional muster or unconstitional. The government cannot use treaties to get around the Bill of Rights. I'm sure thats ancient settled law.

Yeah, it is settled law. So it should surprise nobody that what Cruz claims the Federal Government is arguing is not at all what Cruz is claiming they're arguing.

This should have been obvious from two basic points;
1) Constitutional lawyers don't march in to court completely oblivious of major case rulings.
2) Cruz is an idiot who makes gak up.

**d-usa**

sebster wrote:
This story feels really familiar, chemical weapons treaty and a constitutional challenge. Didn't this happen a couple of years ago? Are we reading old news here?

This case made it to the Supreme Court in 2011 to decide if she had standing to challenge the case based on the 10th since she is a private citizen and not a "state". SCOTUS decided that she had standing to challenge, so it got kicked back down to the lower courts so that she could do just that. This challenge made it's way through the courts and is what is being heard now.

**sebster**

d-usa wrote:
This case made it to the Supreme Court in 2011 to decide if she had standing to challenge the case based on the 10th since she is a private citizen and not a "state". SCOTUS decided that she had standing to challenge, so it got kicked back down to the lower courts so that she could do just that. This challenge made it's way through the courts and is what is being heard now.

Yeah, I went and looked it up myself. Was editing my own post when you posted that. Thanks for the explanation, anyway

**whembly**

d-usa wrote:

The case is Bond vs. United States, and the federal law that is being applied is the Chemical Weapons Convention Implementation Act of 1998.

And nobody in this case, including the defendant and her lawyers, is arguing that the treaty or it's implementation is unconstitutional. The only legal question is "should the Federal government be able to prosecute this case".

It's a jurisdictional issue, and has nothing to do with anything Cruz is arguing.

Edit: wrong word

Eh... look up Medellin v. Texas. That was Cruz... arguing against the Bush administration.

Sorta same thing... no?

Here's the outcome:

(Roberts, C.J.) (1) No. The U.S. Constitution does not require state courts to honor a treaty obligation of the United States by enforcing a decision of the International Court of Justice. The Vienna Convention provides that if a person detained by a foreign country asks, the authorities of the detaining national must, without delay, inform the consular post of the detainee of the detention. The Optional Protocol of the Convention provides that the International Court of Justice is the venue for resolution of issues of interpretation of the Vienna Convention. By ratifying the Optional Protocol to the Vienna Convention, the United States consented to the jurisdiction of the I. C.J. with respect to claims arising out of the Vienna Convention. In 2005, however, after Avena was decided, the United States gave notice of withdrawal from the Optional Protocol. While Avena constitutes an international law obligation on the part of the United States, it does not help Medellin (D) because not all international law obligations automatically constitute binding federal law. Avena does not have automatic domestic legal effect such that the judgment if its owh force applies in state and federal courts, because it is not a self-executing treaty, and Congress did not enact legislation implementing binding effect. Thus, the I.C.J. judgment is not automatically enforceable domestic law, immediately and directly hinging on state and federal courts under the Supremacy Clause. (2) The U.S. Constitution does not require state courts to provide review and reconsideration of a conviction without regard to state procedural default rules as required by a Memorandum by the President. The presidential memorandum was an attempt by the Executive Branch to enforce a non-self-executing treaty without the necessary congressional action, giving it no binding authority on state courts.

Dial back the rage-hate against Cruz a bit.

**d-usa**

whembly wrote:

Dial back the rage-hate against Cruz a bit.

So we shouldn't point out that what he is saying is 100% wrong and has nothing to do with the case he is talking about just because he is Cruz?

His only goal is to say as much stupid gak as he can and hope that people in his base are either too dumb or too lazy to actually look at what he is talking about and then repeat his lie that a constitutional treaty backed by constitutional law enforced by the federal government would somehow lead to unconstitutional treaties and unconstitutional laws being enforced by the government.

Pointing out that everything Cruz says in that article is wrong is not rage-hating against Cruz. I'm sorry if you consider posting the actual arguments being made by both the defendant and the prosecution, and using that to explain that whatever Cruz claims is happening isn't actually happening, rage-hating.

**whembly**

d-usa wrote:
whembly wrote:

Dial back the rage-hate against Cruz a bit.

So we shouldn't point out that what he is saying is 100% wrong and has nothing to do with the case he is talking about just because he is Cruz?

His only goal is to say as much stupid gak as he can and hope that people in his base are either too dumb or too lazy to actually look at what he is talking about and then repeat his lie that a constitutional treaty backed by constitutional law enforced by the federal government would somehow lead to unconstitutional treaties and unconstitutional laws being enforced by the government.

Pointing out that everything Cruz says in that article is wrong is not rage-hating against Cruz. I'm sorry if you consider posting the actual arguments being made by both the defendant and the prosecution, and using that to explain that whatever Cruz claims is happening isn't actually happening, rage-hating.