Supreme Court’s Treaty Decision Allays Conservative Groups’ Education Concerns

By Mark Walsh — June 03, 2014 3 min read
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Groups that had expressed concerns that a broad view of the constitutional treaty power could give the federal government greater authority over education are breathing a little easier after a U.S. Supreme Court ruling involving a chemical weapons treaty.

The court Monday unanimously rejected the federal chemical-weapons prosecution of a woman who had tried to poison her husband’s paramour, though the justices split over their rationales.

The case of Bond v. United States (No. 12-158) has always presented an esoteric mix of “chemical weapons, treaties, and education,” as I put back in November. Conservative groups viewed the prosecution of Carol Anne Bond under a federal law implementing an international chemical-weapons treaty as an example of federal overreach into an area of traditional state concern. (In the case of Bond, a Pennsylvania microbiologist, that means simple criminal law.)

The groups—the Home School Legal Defense Association, based in Purcellville, Va.; and the Center for Individual Rights, and the American Center for Law and Justice, both of Washington—detailed their concerns in briefs to the court. They argued that if the federal government had unfettered power to implement international treaties, that could lead to federal dictates on the length of compulsory education, adequate spending, teacher education, and the rights of children, all of which are the subject of international treaties.

In Monday’s decision, six justices held that the federal chemical-weapons statute does not cover Bond’s “simple assault” case.

“The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon,” Chief Justice John G. Roberts Jr. wrote for the majority. His opinion was signed by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan.

Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. all wrote opinions based on the rationale that the statute covered Bond’s actions, but that the application of the law was unconstitutional.

Scalia said a broad view of the Constitution’s treaty power could “be used to regulate matters of strictly domestic concern.”

For example, he said, the high court’s 1995 ruling that a statute prohibiting the carrying of firearms near schools went beyond Congress’s enumerated powers, in United States v. Lopez, “could be reversed by negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools.”

Thomas expressed concerns that some recent treaties regulate “what appear to be purely domestic affairs.” He indirectly cited the 1989 United Nations Convention on the Rights of the Child, which guarantees children a right to education, juvenile justice, and an adequate standard of living. The convention was signed by President Bill Clinton in 1995, but never ratified by the Senate.

“To interpret the treaty power as extending to every conceivable domestic subject matter—even matters without any nexus to foreign relations—would destroy the basic constitutional distinction between domestic and foreign powers,” Thomas said.

Thomas said that in “an appropriate case, I would draw a line that respects the original understanding of the treaty power.”

The Obama administration had argued that it was well-settled that the treaty power sometimes resulted in federal laws that extended into traditional areas of state concern, including education.

The Center for Individual Rights, on its Web site, lauded the decision and its rejection of the Obama administration’s position.

“The government’s position would make it possible for the Senate and president, in agreement with a foreign government, to grant Congress powers ... not enumerated in the Constitution, and thus override the structural limitations on federal power found in the Constitution,” the group said.

A version of this news article first appeared in The School Law Blog.