I have this post at Constitution Daily: Seeking a Middle Ground in Bond v. United States. Family and professional commitments prevented me from writing an amicus brief on this case, which concerns the intersection of two of my favorite interests, foreign affairs law and federalism. But this is what is would have said. From the conclusion:
In sum, there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.
Also at Constitution Daily on Bond, Oona Hathaway (Yale): The Power to Make and the Power to Implement Treaties, and Nick Dranias (Goldwater Institute): What Do Cheater’s Revenge and Plastic Guns Have in Common? Oddly, perhaps, I pretty much agree with both posts.
Opinio Juris also has a couple of insightful “middle ground” posts on Bond: Duncan Hollis, U.S. Treaty Practice Does Not Have to Be a Zero Sum Game!,and Peter Spiro, Bond and the Non-Use of the Treaty Power. The conclusion I draw from both posts is that the my middle ground suggestion is the right one, although I don’t think that’s what the authors intend.
At Balkinization, Marty Lederman asks: What does the Chemical Weapons Convention Implementation Act have in common with Title II of the 1964 Civil Rights Act, the federal bribery statute, and the Sex Offender Registration and Notification Act of 2006? (His answer, with which I don’t agree , is that Congress’ interstate commerce power could be the basis of regulating Bond’s conduct so the Court can avoid reaching the treaty power question).
Will Baude also has a helpful overview of the case at Volokh Conspiracy: What Questions Will Be Resovled by Bond v. United States?
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.
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