The Supreme Court’s opinion in Bond v. U.S. will be about separation of powers. But about separation of WHICH powers?

Update appended. 5/17 at 1:37 p.m.

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I’ve written several times in the last three-plus years about a Supreme Court case called Bond v. U.S. Actually, to be precise, Bond v. U.S. is two Supreme Court cases, although it’s only one lower-court case. This is not unusual, but the case itself is; both the facts and the legal issues are downright weird.

The case first came to the Court in 2010 as a “federalism” (states’ rights!) case, albeit a highly unusual one: Unlike virtually every other criminal-law-related case ni which federalism is at issue, the criminal defendant in this case was prosecuted not in state court but in federal court.  She argued, successfully, to the Supreme Court, on “direct” rather than “collateral” review–a distinction that gives federal criminal defendants an actual shot at Supreme Court review in order to clarify, broaden or narrow criminal or constitutional law; state-court defendants have virtually no chance, and are (very) effectively precluded, by the Supreme Court’s extreme (absurd) interpretation of a federal “jurisdictional” statute, from any such opportunity in the lower federal courts–that she herself had “standing” under the doctrine of federalism to challenge the constitutionality of her federal prosecution. Notwithstanding that she is not a state. But she had been prosecuted under a ridiculously broad reading of a federal anti-terrorism statute, of what should have been a state prosecution.

You have “standing” to sue if there is a direct, actual or imminent injury to you that could be rectified by a favorable court ruling on the issue you want to raise.

Kennedy wrote the opinion, in which he wrote: See, I told you that federalism equals freedom! (Okay, I’m paraphrasing. But you figured that out by yourself.)  Federalism , Kennedy said, is the separation of powers between the federal and the state governments.  Which makes us freer.  Even when it means that state courts (in criminal and civil cases) and prosecutors are free to violate individuals’ constitutional rights. (Okay he didn’t say that latter in that opinion, but he and his colleagues say it regularly in other opinions.)

The Court send the case back to the lower federal appellate court for review of Bond’s substantive claim: Was her prosecution under a ridiculously broad reading of a federal anti-terrorism statute instead of as a run-of-the-mill assault under state criminal law unconstitutional under the doctrine of federalism?  And while her case was in the lower appellate court, she argued that the Chemical Weapons Convention Implementation Act–the statute under which she was prosecuted, and which Congress had enacted under it’s “enumerated” constitutional power to enforce and interpret treaties– was unconstitutional because, well, the part of the treaty that Congress had enacted the statute to enforce, at least as interpreted by Congress in enacting that statute, was an unconstitutional power grab by the executive branch, which had negotiated the treaty.  At least as interpreted by Congress in enacting that statute.

Something like that. I am, I hope it suffices to say, not an expert on international law.  I’m, I just say, way more comfortable discussing the usual federalism (states rights!) controversies than even mentioning, say, treaty law. But I will note that the Constitution’s Article II, Section 2, Clause 2, enumerates that the President “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Bond lost in the lower court on both her grounds, and the Supreme Court agreed to hear the case again.  The case was argued last November, in the same group of argument “sittings” as Town of Greece v. Galloway.

I had assumed until last week, when Town of Greece was released, that Kennedy would write the opinion in Bond–another ode-to-federalism-because-it-means-freedom opinion–and that Roberts would write the opinion in Town of Greece. (They sort of balance things that way.)  But I was wrong about that. Kennedy wrote Town of Greece and Roberts is writing (or has written; the opinion might be issued on Monday) Bond.  And Vanderbilt law prof. Ingrid Wuerth, who is an expert on international law, writes that she expects it to be a blockbuster.

Wuerth says, if I understand her correctly, that she expects that the opinion will substantially rewrite (i.e., limit) the extent of the federal government’s treaty powers–under some theory of the “structure” of the federal government under the original Articles.

I think it will use a different part of the original Constitution, though, than the one that structures the federal government so that Section 2 of the Fifteenth Amendment, and the habeas corpus provision in the Constitution’s Article I and much of the Fourteenth Amendment (as necessary), are largely nullities. This part of the Constitution, I expect, will have been written not by James Madison, or by Oliver Wendell Holmes (to whom credit will be given, nonetheless), but instead by the Koch brothers, who await this ruling.  The purpose of which will have nothing much to do with terrorism–except the environmental kind that Koch Industries, ExxonMobil, and coal-fired power plants perpetuate.

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UPDATE: Reader Mike Hansberry and I exchanged the following comments in the Comments thread to this post:

HANSBERRY:  Your comment puzzles me. If the Court rules that the federal government overreached in prosecuting Ms Bond, that will strengthen Reid v. Covert, which teaches that the Treaty clause does not empower the Pres. and Senate to override Const,. protections, rather than weaken it. In my opinion, the court ought to expand on Reid and say that the Treaty clause does not empower the Pres. and Senate to violate structural principles any more than it allows them to violate enumerated protections.

Moreover the Court could simply say that the treat power extends as far as Missouri v Holland, but no further. So there is no need whatever to for this ruling to have an impact on the law as it stands.

ME:  Your comment indicates that you understand perfectly the point of my post, Mike.  Reid v. Covert indeed teaches that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens, in that case, to a U.S. citizen living abroad and tried and convicted, by a military tribunal, of murdering her husband.

I do understand that a major part of the Conservative Legal Movement is to privilege states’ alleged rights over the rights of the federal government and the rights of individuals who aren’t rightwing culture warriors, and attribute this to, as I put it in a new post on this blog, “the Constitution–by its structure, its history, its … whatever.  Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.”

You acknowledge that a ruling in Bond that expands Reid’s “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s protections guaranteed to individual American citizens–a ruling that expands it to a “teaching” that the Treaty clause does not empower the president and Senate to override the Constitution’s alleged sovereignty guaranteed to individual states American citizens–would be a clear expansion of Reid’s teaching.  It would, in fact, be not just an expansion but an alteration of the purpose Reid’s teaching, which was to protect individuals, not states, from evisceration of the Constitution’s direct guarantees to individuals.

The question is not whether a treaty can supersede the Constitution’s structure, but instead the right’s claim that the Constitution’s structure is, in essence, the right’s legislative agenda.  That is, the question is: What actually is the Constitution’s structure. In this case–and, really, this case only–a ruling for Bond based on the right’s claims about the Constitution’s structure also would reflect the left’s idea of the Constitution’s structure, but in an entirely different respect.  Carol Bond should win, but because her own individual constitutional rights were violated by a bizarre application of a federal statute.  She should not have to piggyback on some rightwing claim that states, and especially state courts and state prosecutors, are sovereigns whenever they choose to be, including whenever they choose to violate a criminal defendant’s constitutional rights.

THAT would avoid a de facto reversal of what Holmes actually wrote in Missouri v. Holland, as I read that opinion.

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