The Firing Line Forums - View Single Post - Are there any constiutional limits on legislation implementing treaties?

Al Norris · November 10, 2013, 12:06 PM

Audio of the orals are here: 12-158. Bond v. United States. If your web browser is properly set-up (embedded real-audio), clicking on the link will take you to a page where the audio will be streamed to you automatically. In addition, you may download both the audio and the transcript from this page to read/listen at a later date.

As is usual in high profile cases, the transcript leaves out many remarks by the Court and the counsel.

I get a sense from the Court, that the justices are all concerned about the scope of the treaty power, in general: Can a treaty advance the powers of the Federal Government, such that it leaves behind what is enumerated and grants new power(s) to the Congress?

Justice Kagan makes the point of the Necessary and Proper clause, as just that vehicle (middle of pg 25 of the transcript). That is the only time this is brought up, yet I don't think that she was the only justice who made that connection. I believe it to be in the forefront of the Courts mind. This in the manner of the questioning and especially in the attack on Verrilli. This is one elephant in the room that the Court recognizes.

While no one really questions whether or not a treaty is valid (as signed and ratified by the Senate), the Court does question whether or not the implementing laws (as passed by the Congress) might or might not be valid. That was the point of all the hypotheticals the Court used in its questioning of both sides.

Then, there is the very real danger of a Senate that would ratify a treaty that is inimical to States authority. While Verrilli implies that the Senate would never do such a thing, C.J. Roberts brought home the idea that it could, as it (the Senate) was no longer constrained by the States (17th Amendment - pg. 28 - another unspoken elephant).

This case has huge implications on the nature of Federalism, as it will be understood from this point on.

As such, how the Congress implements (I'm assuming it will be ratified at some point in time) the Small Arms Treaty, will hinge upon the outcome of this case.

November 10, 2013, 12:06 PM	#8
Al Norris Moderator Emeritus Join Date: June 29, 2000 Location: Rupert, Idaho Posts: 9,660	Audio of the orals are here: 12-158. Bond v. United States. If your web browser is properly set-up (embedded real-audio), clicking on the link will take you to a page where the audio will be streamed to you automatically. In addition, you may download both the audio and the transcript from this page to read/listen at a later date. As is usual in high profile cases, the transcript leaves out many remarks by the Court and the counsel. I get a sense from the Court, that the justices are all concerned about the scope of the treaty power, in general: Can a treaty advance the powers of the Federal Government, such that it leaves behind what is enumerated and grants new power(s) to the Congress? Justice Kagan makes the point of the Necessary and Proper clause, as just that vehicle (middle of pg 25 of the transcript). That is the only time this is brought up, yet I don't think that she was the only justice who made that connection. I believe it to be in the forefront of the Courts mind. This in the manner of the questioning and especially in the attack on Verrilli. This is one elephant in the room that the Court recognizes. While no one really questions whether or not a treaty is valid (as signed and ratified by the Senate), the Court does question whether or not the implementing laws (as passed by the Congress) might or might not be valid. That was the point of all the hypotheticals the Court used in its questioning of both sides. Then, there is the very real danger of a Senate that would ratify a treaty that is inimical to States authority. While Verrilli implies that the Senate would never do such a thing, C.J. Roberts brought home the idea that it could, as it (the Senate) was no longer constrained by the States (17th Amendment - pg. 28 - another unspoken elephant). This case has huge implications on the nature of Federalism, as it will be understood from this point on. As such, how the Congress implements (I'm assuming it will be ratified at some point in time) the Small Arms Treaty, will hinge upon the outcome of this case.