Bond Thoughts: Federalism Aggression on Human Rights

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

The Bond v. United States case came out today in which the Supreme Court supposedly ducked the Missouri v/ Holland question by focusing on interpreting the implementing legislation for the chemical weapons convention under federalism concerns in a supposed act of avoidance of the constitutional question.

The decision seems to be an indirect trimming of Missouri v. Holland in the sense that – going beyond Reid v. Covert on a constitutional level, the federalism structural attack was made in the majority’s view of the language of the implementing legislation which tracked the treaty language. Here the Court opts for a clear statement being needed if the Congress truly meant to reach the kind of actions of this jilted spouse. Absent a clear statement of that purpose, the Court stated it would not presume Congress to have authorized reaching the conduct of the individual in question which the majority of the Court viewed would have been a stark intrusion by the federal government into traditional state police power authority. That appears to be a fairly strong curtailment of a kind of deference to Congress’ powers expressed in Missouri v. Holland with regard to that implementing legislation.

Justices Scalia, Thomas and Alito concur in the majority opinion with a full throated view that the treaty power does not reach domestic internal matters. Without stating it directly, anyone familiar with the human rights treaties that the United States has entered into can see inherent in this view the challenge here to the power of the federal government to even enter human rights treaties. This challenge is blinkered by the international range of possibilities that the framers envisioned for treaty-making and not by the range of possible treaties that a sovereign has come to recognize as appropriate to enter. And, of course, it is blinkered by a complete absence of any comprehension of the devastation of the two World Wars that helped to push forward the modern era of human rights law – making human rights a concern of both states and of citizens within states.  Further, it attempts to erase or at least obscure the human rights character of the domestic civil rights movement.

To me, the lesson here is that the federalism onslaught on international law that was enshrined in Medellin continues forward in four ways: 1) first, in the attacking of the implementing legislation for non-self-executing treaties on federalism grounds, 2) second, in the application in the future of the limited self-executing treaties in terms of both Bill of Rights and structural concerns of federalism, 3) the assertion of non-self-execution to any human rights treaty and 4) in an all out attack on the Treaty Power being used to address domestic internal matters which would include human rights (independent of the self/non-self-execution) issue.

What the Court could have done is simply recognize the implementing legislation consistent with Missouri v/ Holland and leave the matter to one of both state and federal prosecutorial discretion.  That would not have trimmed back the chemical weapons convention in domestic law while still vindicating our federalism.

Rather than an anodyne case, Bond should be seen, unfortunately, as an attack on the domestic vindication of human rights law. What we need to emphasize is that these international obligations are obligations that the United States freely accepted and should be made to respect by ordinary Americans whether in our separation of powers or in our federalism.  Otherwise, we are accepting a further kind of social violence internally to the detriment of the ordinary citizen’s freedom.  That is to turn the double security of our rights as the people that these structures are to protect, into structures of oppression.