On more than one occasion President Barack Obama or a top Administration official has lamented that the Commander in Chief is not a king or a dictator and is, therefore, unable to ram his progressive policies down the greater American public’s collective throat as quickly as his liberal supporters would like. And on several occasions, the sole hurdle halting the President in his dash toward liberal utopia—or totalitarian hell, depending on whom you ask — has been a pesky 226-year-old document called the Constitution of the United States of America.
But the Obama Justice Department is working to change that.
Attorneys at the Justice Department are currently working to advance a Supreme Court argument that the Federal government should be allowed to invoke international treaties as legal basis for policies that government officials are unable to put into place because they conflict with the Nation’s Constitution.
The Supreme Court is slated to begin hearing oral arguments in United States v Bond early next month — a case in which the court will determine, according to SCOTUSblog:
(1) Whether the Constitution’s structural limits on Federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the Federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult Constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v Holland.
In short, United States v Bond concerns a woman poisoning her husband’s mistress and, in doing so, violating the international ban on chemical weapons. Per the Constitution, the woman should be prosecuted at the State level — but the Federal government prosecuted her under the Chemical Weapons Convention Implementation Act.
That is the same Act that Syrian Dictator Bashir al-Assad is a accused of violating and is the justification that many war-hungry politicians recently used as basis for a military attack on the Syrian government.
The Constitutional question is whether the Federal government can use treaties that Congress has ratified as Federal policy.
A 1920 Supreme Court ruling in Missouri v Holland upheld a treaty requiring the Federal government to enact laws regulating migratory birds after a similar statute was deemed unConstitutional in a lower court. At the time, Justice Oliver Wendell Holmes argued that treaty power extends beyond Congress’s regular lawmaking clout.
During a speech at the Heritage Foundation this week, Senator Ted Cruz (R-Texas) explained the danger in accepting the Justice Department’s argument that international treaties and Federal policy are intertwined in domestic matters.
“If the broad interpretation of the Missouri v Holland snippet is accurate … you now have a roadmap – if you find the limitations on the Federal government’s authority irksome, any President has a simple path to get around it,” Cruz said. “Find any nation in the world, negotiate a treaty agreeing to do what you couldn’t do otherwise, and if the Senate ratifies it – and by the way that means you can cut the House of Representatives out of everything – then suddenly the Federal government has authority it didn’t have before.
“That is a radical interpretation of the treaty power. That is what is at issue in Bond: does the treaty power enable the Federal government to circumvent the structural limitations on the authority of the Federal government?” Cruz continued.
If that is the case, the Senator surmised that the President could even go so far as signing a treaty giving away any American rights protected by the Constitution.
“The proposition that the Treaty Clause is a trump card that defeats all of the remaining structural limitations on the Federal government is not a proposition that is logically defensible,” Cruz said.