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June 3, 2014

After Ruling, Menendez Vows to Resurrect CRPD

The United States Supreme Court on Monday issued its ruling in Bond v. United States, which dealt with applying the Chemical Weapons Convention Implementation Act of 1998 (“Act”) to a local crime in Pennsylvania. Before the ink had time to dry, Senate Foreign Relations Committee Chairman Robert Mendez had vowed to use the decision as an excuse to resurrect the Convention on the Rights of Persons with Disabilities (CRPD).

“Based on today’s Supreme Court ruling,” Menendez vows, “I intend to put the Disabilities Treaty up for a vote in the Senate Foreign Relations Committee in the near future, in the hopes that it will then be considered and passed by the full Senate.”

According to Menendez, the decision “removes any fears that the Convention could ever be used to expand federal authority beyond the limits of the Constitution, undermine state sovereignty, or allow lawsuits to be filed in U.S. court.” Oh, that it were so.

Unfortunately, Menendez’s statement could not be further from the truth.

“Senator Menendez is sorely mistaken if he thinks Bond makes it clear that he is right and treaty opponents are wrong on the meaning of treaties,” Constitutional legal scholar and CRPD opponent Michael Farris said in a statement. “Every opinion issued in this case only serves to underscore the concerns we have voiced regarding ratification of this and similar treaties that would seek to govern domestic policy.”

(Farris wrote an amicus brief for the Court’s consideration in this case, and both the majority opinion and Thomas’s concurrence contain arguments raised in that brief.)

All nine justices agreed that the lower court’s ruling to find Bond guilty under the 1998 law was in error. A six-member majority of the Court held that the law does not apply to this local crime, which should instead be prosecuted under state law. The three remaining justices – Scalia, Thomas, and Alito – wrote three separate concurring opinions in which each showed an eagerness to tackle the constitutional question which the majority evaded: whether or not the treaty power is unlimited and can be used to expand federal jurisdiction under the Constitution.


The majority opinion, written by Chief Justice John Roberts and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, refused to address the constitutional question of the scope of the treaty power, finding instead that the Act “does not cover the unremarkable local offense at issue here.” Yet, even in evading the constitutional question, the decision highlighted distinctions between the Chemical Weapons treaty at issue in Bond and the CRPD.


Multiple times Chief Justice Roberts referenced Article VII(1) of the Chemical Weapons Treaty, which states that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this convention.” Bond v. United States, 572 U.S. ___ (2014) (slip op. at 10, emphasis in the original). Such a provision has been replaced in the CRPD, however, with Article 4(5) which asserts that “[t]he provisions of the current Convention shall extend to all parts of federal states without any limitations or exceptions.” (emphasis added) While the former would preserve the federalism structure of our government, the latter intentionally calls for its overthrow.

The Supreme Court held that in Bond “it is fully appropriate to apply the background assumption that Congress normally preserves ‘the constitutional balance between the National Government and the States.’” But again, Art. 4(5) of the CRPD explicitly removes that assumption.

The majority opinion also relies on “the exercise of state officials’ prosecutorial discretion as a valuable feature of our constitutional system” and finds that “nothing in the [Chemical Weapons] Convention shows a clear intent to abrogate that feature.” Yet this, too, would be reversed under Art. 4(5) of the CRPD. It is the clear intention of both the CRPD and the similar Convention on the Rights of the Child (CRC) that State Parties to the conventions take responsibility for all levels of government precisely to make sure that local discretion cannot be used to counter the provisions of either treaty.


Even without addressing the constitutional question, however, the majority opinion asserts that a duly ratified treaty is not bound by the principles of our federalist system. “Bond was prosecuted under section 229 [of the Act],” Roberts writes, “and the statute – unlike the Convention – must be read consistent with principles of federalism inherent in our constitutional structure.” Ibid., emphasis added.

In the opinion of two-thirds of the Court, implied rights and assumed principles do not apply to a ratified convention. For them, the treaty power is unlimited except by the text itself of the Constitution alone. This is the very danger we have been warning about all along.

In his concurring opinion, Justice Scalia (joined by Thomas in full and by Alito in part) takes issue with the Court’s refusal to address the constitutional issue. He also takes the opportunity to decry the Court’s precedent from Missouri v. Holland, 252 U.S. 416 (1920). In that case the Court asserted that “[i]f the treaty is valid, there can be no dispute about the validity of the statute under Article I, Sect. 8 [of the Constitution], as a necessary and proper means to execute the powers of the Government.”

If this is true, Scalia warns – and it remains existing Court precedent – then Holland places Congress only one treaty away from acquiring a general police power.” Bond, Scalia concurring in judgment, at 14.

Scalia concludes that the majority decision convolutes the truth “to leave in place an ill-considered ipse dixit [(‘he himself said so’)] that enables the fundamental constitutional principle of limited federal powers to be set aside by the President and Senate’s exercise of the treaty power. We should not have shirked our duty and distorted the law to preserve that assertion….” But in fact they did, and the rule of Holland – that the treaty power may be used to expand federal authority beyond normal constitutional grounds – remains the binding precedent with which we must contend, Menendez’s assurances to the contrary notwithstanding.

Justice Thomas wrote a concurrence as well, and was joined by Scalia in full and by Alito in part. While Scalia argued that the Court should have taken the opportunity to limit the treaty power based on principles of federalism, Thomas’s opinion holds that the treaty power is already limited, based on original definitions. Were his opinion held by more than only three justices (well, if it were more than four, really), then we could find in it cause for celebration. Otherwise, while it is beneficial in introducing that idea into the constitutional dialog (“I write separately to suggest that the Treaty Power is itself a limited federal power”), it has no binding effect.

Something else in his discussion, however, again lends credence to our view of treaties, over against the white-washed picture which Menendez and his internationalist cronies want to present. In particular, Thomas warns of the seismic shift in the definition and form of “treaties” over the last 50 years or so.

“[S]ome have suggested that the treaty power is boundless – that it can reach any subject matter, even those that are of strictly domestic concern. A number of recent treaties reflect that suggestion by regulating what appear to be purely domestic affairs.” Bond, supra, Thomas concurring in judgment, at 2, citations omitted. The Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities are two such treaties.

Thomas believes these are beyond the intended treaty power and therefore should not pose a threat – an opinion with which we agree. Alito’s separate concurrence also supports this view. Nevertheless, a majority of the Court holds otherwise. Thus, despite Menendez’s assertion to the contrary, the threat remains.

In his June 2 press release, Senator Menendez claimed that the Bond ruling ends all concerns about the domestic implementation of over-reaching international law. Yet we have seen that the very opposite is true. The Bond decision actually serves to highlight the very grave concerns that have been raised throughout CRPD hearings by those opposed to treaty ratification.

As time goes on, we are hopeful that more senators and scholars will take the time to read the actual Bond decision and not just trust the chairman’s 5-paragraph release claiming victory. As they do, they will see that the Court’s finding has, on every page, reflected the reality of the situation as we have declared it to be from the beginning. Unless and until the whole Court chooses to adopt Scalia’s or Thomas’s view of the Holland decision, ratifying the CRC or the CRPD remains contrary to the principles and interests of American federalism, liberty, and self-government.


Michael Ramey
Director of Communications & Research

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