Again treaties can't have the federal government do anything it isn't already empowered to do so - so sayeth the part of the Constitution that grants the treaty power.

Several of my co-bloggers (Eugene, Jonathan, and Ilya) have already noted today’s opinion in Bond v. United States. As they have explained, Ms. Bond was prosecuted for violation of the Chemical Weapons Convention Implementation Act. She argued (1) that the statute did not reach her conduct; and, in the alternative, (2) if the statute does reach her conduct, then Congress had no constitutional power to enact it. Six justices agreed with her on the (relatively uninteresting) first proposition, and the other three justices agreed with her on the (extremely important) second proposition.

My co-bloggers have well explained the majority opinion and the Chief’s seeming predilection for avoiding constitutional questions with (dubious?) statutory interpretations. I will just add a few words about Justice Scalia’s concurrence, which Justice Thomas joined. In my view, it is extremely important, and exactly right.

For Justice Scalia, it is crystal clear that the statute reaches Ms. Bond’s conduct. “Since the Act is clear, the real question this case pre­sents is whether the Act is constitutional as applied to petitioner.”

As to that question, the government argued that because the United States had entered into a treaty concerning chemical weapons, Congress automatically has the power to enact a statute on this topic, even if it would have lacked this power otherwise. It argued, in other words, that a treaty can increase the legislative power of Congress. And indeed, in 1920, the Supreme Court, per Justice Holmes, seemed to say exactly that. Holmes wrote: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, § 8, as a necessary and proper means to execute the powers of the government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

...Justice Scalia writes: “Petitioner and her amici press us to consider whether there is anything to this ipse dixit. The Constitution’s text and structure show that there is not.” He is exactly right, and his opinion is a masterpiece.

In short, as Scalia explains:

"[A] power to help the President make treaties is not a power to implement treaties already made. See generally Rosenkranz, Executing the Treaty Power, 118 Harv. L. Rev. 1867 (2005). Once a treaty has been made, Congress’s power to do what is “necessary and proper” to assist the making of treaties drops out of the picture. To legislate compliance with the United States’ treaty obligations, Congress must rely upon its independent (though quite robust) Article I, § 8, powers."

...Justice Scalia begins with the constitutional axiom that Congress has limited and enumerated powers, and then explains how the government’s argument would constitute a “loophole” to that fundamental principle. If the government is right, “then the possibilities of what the Federal Government may accomplish, with the right treaty in hand, are endless and hardly farfetched …. It could begin, as some scholars have suggested, with abrogation of this Court’s constitutional rulings.”

...But this is, as Scalia says, “the least of the problem.” The government’s position “places Congress only one treaty away from acquiring a general police power.” But countless canonical opinions insist that Congress can have no such power.

...Justice Scalia’s opinion is a masterpiece. Unfortunately, he was only writing for himself and Justice Thomas. However, it is important to note that the other seven expressed no view about whether a treaty can increase the legislative power of Congress. (There is actually a hint that Justice Alito may agree with Justices Scalia and Thomas; although he did not join Justice Scalia’s concurrence, he did sign onto Part III of of Justice Thomas’s concurrence, which says that Missouri v. Holland “upheld a statute implementing [a] treaty based on an improperly broad view of the Necessary and Proper Clause.”) So Justice Scalia’s powerful opinion went unanswered, and today’s score on this point is 2-0. Missouri v. Holland remains the law of the land, but in a proper case, it may yet be overruled.

Elmo does not score any points for having one Justice agree with him.

AMENDMENT IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.

Similarly, if the situation were reversed and the US ceded land to a foreign power, Congress would not suddenly gain the power to confiscate the land from its owners to turn it over to the new power even if the treaty demanded Americans remove themselves. In practice, once the new power arrived it might forcibly remove the residents, but obviously that foreign government would not be subject to the Constitution in the first place.

Diamondeye:



Fairly certain, the Ninth and Tenth Amendments actually have meaning. Our government, at the Federal level, has been grossly remiss in adhering to either or enforcing either, but they were part of the Supreme Law of the Land in 1791. The first clause of the Tenth Amendment is particularly important, because it quite nicely establishes the Constitution as a negative rights document. "The powers not delegated to the United States by the Constitution ..." is a rather large group of powers. The powers delegated to the United States by the Constitution, on the other hand, is a very limited and specific set of powers outlined in the document itself.

I mean, hell, we only have to look at Article 1, Section 9 of the Constitution to see a specific directive that our current government is quite content to ignore:There are no amendments changing this part of the Constitution, but it's been held in almost complete disregard by the Federal Government since 1855. They violate the former half of this stipulation on a regular basis and in egregious ways.

Kelo v. New London pretty much invalidates your claim here. Any governmental body can seize, without just recompense, privately owned property for projected increased tax revenues. And one of the large problems with the Kelo Ruling is that it does give the Federal government the authority to seize land from its owners to turn it over to other entities for government gain.