Wednesday, November 06, 2013

Observations on the Oral Argument in Bond

Marty Lederman

Over at Opinio Juris, I've posted some thoughts about the Bond oral argument yesterday.

In sum, although there was very little discussion about the "as-applied" commerce argument I flagged on Monday, Justices Breyer and Kennedy appeared to be very interested in exploring a limiting construction of the Chemical Weapons Convention that would not cover Bond's conduct, and thus avoid the need to resolve any major constitutional questions.  In my post I discuss the prospects of such a limiting construction.

I also remark on the suggestions throughout the argument that a serious constitutional problem would be raised if a treaty—or legislation implementing a treaty obligation—regulated conduct that would otherwise traditionally be within the domain of the states’ “police power”; and I address Justice Alito's striking alternative suggestion that perhaps the term "treaty" in Article II could be read narrowly to exclude international agreements concerning the way in which nations treat or protect their own nationals.

I offer a few thoughts about how Medellin v. Texas and Missouri v. Holland were characterized at argument.  And finally, I offer a corrective to the common view that the Bond prosecution itself is "unimaginable," or an example of an out-of-control, voracious federal government indifferent to principles of federalism.  

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