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05/06/2012

"Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?"
Michael Ramsey

At Opinio Juris, Peter Spiro asks the question, and answers:

Quite possibly.  Here’s the Third Circuit’s merits opinion in United States v. Bond [decided May 3], involving a conviction under the Chemical Weapons Convention Implementation Act of 1998.  The court upheld the conviction against a Tenth Amendment attack, this after the Supreme Court last year found Ms. Bond to have standing to press the federalism claim.

As Professor Sprio notes, both the lead opinion and one concurrence called for the Supreme Court to clarify the scope of Missouri v. Holland (which allowed Congress' power to implement treaties to reach matters not otherwise within Congress' enumerated powers).  The concurrence observes:

With its shockingly broad definitions, [the Act] federalizes purely local, run-of-the-mill criminal conduct.  The statute is a troublesome example of the Federal Government’s appetite for criminal lawmaking.  Sweeping statutes like [this one] are in deep tension with an important structural feature of our Government:  “The States possess primary authority for defining and enforcing the criminal law.”

It continues:

I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it

Jonathan Adler has more here, at Volokh Conspiracy.

UPDATE:  Michael Greve discusses Bond at the Liberty Law Blog: United States v. Bond: From Broccoli to Vinegar.