Overruling Missouri v. Holland?
Nicholas Quinn Rosenkranz, the Cato Institute and the Center for Constitutional Jurisprudence have filed this amicus brief with the U.S. Supreme Court supporting the petition for certiorari in Bond v. United States. This is the case challenging the longstanding rule (from Missouri v. Holland) that a treaty can expand the scope of Congress' legislative power. As summarized at the Cato website:
In 2010, the Supreme Court decided United States v. Bond, a case that seems right out of a soap opera. Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman's car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman's mailbox. Rather than leave this caper to local law enforcement to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention. Bond [argued] … that the statute at issue violates the Tenth Amendment—in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit disagreed, however—if reluctantly—based on one sentence by Justice Oliver Wendell Holmes in Missouri v. Holland (1920) that has been interpreted to mean that Congress's constitutional powers can indeed be expanded by treaties. Writing separately, Judge Ambro agreed that Holland clearly addressed the issue but "urge[d] the Supreme Court to provide a clarifying explanation of its statement" regarding the treaty power. Bond ... [asks] the Court to clarify and cabin Holland. … [In the amicus, we] argu[e] that allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers. Not only would this mean that the Executive has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating a previously valid treaty—thus removing the constitutional authority from certain laws. We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has gotten repeated without question and that the ruling is in deep tension with other cases. We're in a constitutional quagmire with respect to the treaty power that can only be escaped by limiting or overturning Missouri v. Holland.
Thanks to Nicholas Rosenkranz for the pointer.
UPDATE: Ilya Somin comments here (though his final paragraph might be read to misstate slightly what's at issue: the question in Bond, as I understand it, isn't the permissible scope of the treaty power, but rather the ability of Congress to implement by statute a treaty on a subject that's not otherwise within Congress' enumerated powers).