A Partial Defense of the Majority Opinion in Bond v. United States

Chief Justice Roberts’ majority opinion in Bond v. United States has been sharply criticized (see here and here), so I’ll say few words partially in its favor. The case has seemed odd from the beginning because the federal statute at issue implements the Chemical Weapons Convention and (as the majority says) the local misuse of household chemicals does not seem the type of activity that is likely to implicate an international treaty. 

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Chief Justice Roberts Again Rewrites Law, Avoids Duty to Hold Government’s Feet to the Constitutional Fire

Bond was a case about the scope of the treaty power—can Congress do something pursuant to a treaty that it can’t otherwise do?—and yet the majority opinion avoided that discussion altogether in the name of a faux judicial minimalism.

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Don’t Count On the Courts (Or Congress Either)

Georgetown University Law Center professor Randy Barnett nailed it in a short post on the Volokh Conspiracy Blog this week.

Much as I believe that the NSA bulk data seizure program is unconstitutional because it is an “unreasonable” general warrant, the preferable remedy would be a congressional fix. Moreover, I agree that we should never count on the courts to save us.

Barnett crams a lot of truth into a single sentence.

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