Solicitor General Donald Verrilli told the justices that any effort to narrow the administration’s expansive interpretation of its powers under the treaty could make it harder to enforce existing treaties and negotiate future accords at precisely the time when sensitive efforts are under way in Syria.
“This is serious business,” Mr. Verrilli said in advocating a broad assertion of federal authority under the treaty.
At least three justices seemed to agree with the administration’s approach – Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.
But during the hour-long argument, five other justices expressed various degrees of discomfort with Verrilli’s position.
At issue in the case, Bond v. United States (12-158), is whether a statute passed by Congress to implement the Chemical Weapons Convention confers broad power upon the federal government to prosecute crimes within the US that would otherwise be handled by local police.
The case stems from the prosecution of a Pennsylvania microbiologist who used toxic chemicals to try to settle a personal score.
Carol Bond attempted to use various poisonous chemicals to injure a former friend after she discovered that the friend was having an affair with her husband and that Ms. Bond’s husband was the father of the friend’s baby.
Rather than turning the case over to local authorities, federal prosecutors charged Bond with using “chemical weapons” against the former friend.
The question before the high court is whether the government’s broad assertion of federal authority in a local criminal case comports with the structural limits of the US Constitution.
Under the Constitution, the federal government’s powers are restricted to those listed by the framers of the Constitution. All other powers, including general police powers, are left to state and local governments.
Under the Obama administration’s approach, an expansive interpretation of its power under the Constitution’s Treaty Clause would open wide new avenues of federal authority, free of the constraints of federalism.
At one point in the session, Verrilli was asked whether the administration’s approach would allow the president and Congress to circumvent Supreme Court decisions and other constitutional limits protecting the exclusive realm of state and local governments.
“It wouldn’t be a circumvention if this is something that could be constitutionally done under the treaty power,” Verrilli answered.
Justice Samuel Alito questioned the federal government’s expansive definition of chemical weapon as being any toxic chemical used maliciously.
“If you told ordinary people that you were going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted,” he told Verrilli.
“Would it surprise you if I told you that a few days ago, my wife and I distributed toxic chemicals to a great number of children?” Justice Alito said, prompting laughter in the courtroom. “On Halloween, we gave them chocolate bars. Chocolate is poison to dogs, so it’s a toxic chemical.”
Bond’s lawyer, Paul Clement, urged the justices to embrace a more restrictive reading of the underlying statute. He suggested they could alleviate the constitutional tension by interpreting the statute to reach only the warlike use of specific toxic chemicals listed in an appendix to the statute.
One of the most pointed exchanges of the session came between Verrilli and Justice Stephen Breyer, a moderate-liberal on the court.
Under the administration’s broad reading of the treaty power, Justice Breyer said, the president and two-thirds of the Senate could enact a treaty that would be binding on the entire country – without any input from the House.
“In principle, your position constitutionally would allow the president and the Senate, not the House, to do anything through a treaty that is not specifically within the prohibitions of the ... Constitution,” he said.
Breyer said that he doubted the framers wrote the Constitution intending that result.
“We still have a democracy,” he told Verrilli, noting that the House is part of it.
“If you carry it to extreme, that’s where you are,” Breyer said. “And I am worried about that, and I think others are, too.”
Earlier in the session, while defending the administration’s approach, Justice Kagan noted that the Supreme Court had confronted a similar case in 1920 involving a clash between states’ rights and federal power to enforce a treaty.
In that case, the court said that if the treaty was valid, Congress would possess the authority necessary to enforce it.
The treaty in question was between the US and Britain and provided for the protection of migrating birds. The treaty barred shooting the birds, and the ban was enforced by the federal government in all states regardless of whether state law provided for a similar ban.
Mr. Clement said the 1920 case is different from the chemical weapons case. The treaty in the 1920 case directly prohibited individual conduct, and the implementing statute enforced the prohibition with criminal penalties.
In contrast, he said, it is not clear under the Chemical Weapons Convention or the implementing statute whether the measures affect individual conduct and, if so, how.
A decision in the case is expected by June.