What does poisoning a goldfish to get revenge on a cheating spouse have to do with the President’s power to make treaties? The constitutionally correct answer is: Nothing at all. Unfortunately, that’s not how the Obama Administration sees it. The Administration is claiming power to get into a domestic dispute under the authority of a chemical weapons treaty. And it is aggressively advancing the proposition that Congress’s power is essentially unlimited when based on the treaty power.
The federal government has been prosecuting Carol Anne Bond for causing minor burns to the fingers of her husband’s girlfriend after spreading a caustic chemical used in developing photographs around her home. Ms. Bond has fought the prosecution by arguing that the Constitution gives power over such domestic disputes to the States. According to the U.S. Court of Appeals for the Third Circuit, Congress implemented a chemical weapons treaty by enacting a law that expands the treaty’s purpose and turns “each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” In an earlier phase of the litigation, Justice Samuel Alito asked, “Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?”
In support of Ms. Bond’s argument that the federal government has overstepped its constitutional powers, the Goldwater Institute today filed an amicus brief before the U.S. Supreme Court in Bond v. United States of America. Our brief warns that if courts allow Congress to implement treaties without respecting the Tenth Amendment’s limitation on federal power, there is nothing to stop the federal government from using international agreements and legislation to displace other constitutional guarantees. This is because the vertical separation of powers between the states and the federal government is not a second-class constitutional protection. Allowing a treaty to undermine the Tenth Amendment opens the door to Congress enacting treaties that violate all constitutional protections – including the freedom of the press and the right to due process. That is why the Court must draw a bright line at kitchen cupboards and cleaning cabinets.
Ms. Bond won the first round when the Supreme Court reinstated her Tenth Amendment defense after the lower court rejected it on procedural grounds. Her case then returned to the lower courts, only to result in the Third Circuit rejecting her defense on the merits. Now the Supreme Court gets the last word. Hopefully, the Court will hold the line.