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08/23/2013

Briefs Filed in Bond v. United States
Michael Ramsey

The government's response in Bond v. United States, the upcoming test of Congress' treaty implementation power, is available here (via Nick Rosenkranz).

Among various amicus briefs filed in support of the government these are of particular originalist/historical  interest:

Brief for Professors David M. Golove, Martin S. Lederman and John Mikhail in Support of Respondent (principally arguing that the challenged statute is necessary and proper to implement the treaty)

Brief for Professors Sarah H. Cleveland and William S. Dodge in Support of Respondent (principally arguing that Congress has power to implement treaties through the offenses clause)

(Thanks to the American Bar Association's website Preview of United States Supreme Court Cases, an invaluable resource).

There is also another important amcius for respondent filed by Jenny Martinez (Stanford) on behalf of professors of international law and legal history.  For some reason I have not been able to find it online.  I saw an earlier draft; it principally argues on textual and historical grounds that the treatymaking power is not limited by Congress' enumerated powers.  (I agree; see here).

RELATED: At SCOTUSblog, Academic Highlight: Questioning Congress' Authority to Implement Treaties (discussing the Nick Rosenkranz article that provides the academic force behind Bond).

In his article, Rosenkranz contends that Missouri v. Holland is at odds with the fundamental constitutional principle that the federal government can only act within its enumerated powers.  He musters textual, structural, and historical arguments for his view, and contests Professor Louis Henkin’s reading of the Constitution’s drafting history, which both Henkin and the Supreme Court have cited in support of Holland’s rationale.  As Rosenkranz observes, the question of Congress’s power to implement treaties has taken on added importance now that the Supreme Court is more actively policing the boundaries of Congress’s power.  Bond’s lawyers also make this point in their opening brief in the Supreme Court, in which they argue that if Holland  is not overruled or limited, Congress could use treaties to perform an end run around carefully crafted federalism limits on its authority to legislate.