Heritage Foundation: Does the Treaty Power Threaten Our System of Limited Government?

October 30, 2013

How Treaties Are Enforced Says A Lot About Our Government


Andrew Kloster, Legal Fellow, Heritage Foundation


The Honorable Ted Cruz (R-TX), United States Senate

Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center

Steven Groves, Senior Research Fellow, The Heritage Foundation

For the final installment in its “Preserve the Constitution” lecture series the Heritage Foundation invited Senator Ted Cruz and other legal experts to offer their opinions on an important case that is scheduled to be brought before the Supreme Court this year. The case of United States v. Bond concerns a citizen in Pennsylvania who assaulted her neighbor with a burning chemical agent and, instead of being prosecuted by the state for assault, she has been charged under the Chemical Weapons Convention– an international arms control treaty. The central question in the U.S. v. Bond case is: to what extent does should this single, domestic incident, be covered under an international ruling, which jurisdiction should the defendant answer to, and can federal authorities circumvent their constitutional limitations and override a state’s jurisdiction in the name of upholding a treaty?

Sen. Cruz and the other speakers firmly argued that any international treaty the U.S. partakes in should not be applied to civilian cases and cannot overrule the laws of the states nor the rulings of their judges. Sen. Cruz argued that, in letting Ms. Bond be tried under an international treaty, the U.S. would be forfeiting its sovereignty, abolishing the federal government’s constitutional restraints, and would make the Bill of Rights and other founding documents devoid of any meaning. If the U.S. puts the values of the international community ahead of its own domestic values it risks losing its identity. Sen. Cruz posed a hypothetical situation, in which President Obama would be able to abolish the second amendment by citing the UN Arms Trade Treaty, as an example of what could happen should treaties be given such precedence. Should the Supreme Court rule that international treaties be recognized in state affairs it would not only put the U.S.’ founding principles be at stake but also the democracy which it stands for,would also be jeopardized, as the power to approve and ratify treaties lie entirely with the President and Congress. Sen. Cruz again hypothesized that, should the Court rule against Bond, it would lead to a president picking which laws he wishes to obey and enforce, while establishing treaties to overrule those which he disagrees with. Sen. Cruz compared this scenario to the Obama Administration’s recent allowance of some corporations to be exempt from the Employer Mandate and also its loose interpretation and application of laws regarding drone usage.

To further justify his position, Sen. Cruz recalled a case he argued in 2008, while acting as Solicitor General for the state of Texas. The case, Medellin v. Texas, focused on a citizen of Mexico who had been detained for murder in the United States but not told that he had the right to contact the Mexican consulate for consultation prior to his trial. Due to the local law enforcement’s failure to properly convey his rights, the Mexican Government sued the U.S. in the World Court and demanded that Medellin and more than 50 other Mexican nationals, whose rights had also not been conveyed, be retried. To smooth the process, President Bush signed an order for the states to comply with the World Court’s ruling. At the time, Sen. Cruz and others challenged this executive order, and successfully argued that 1) international agreements/contracts/treaties, made at the UN, ICC, or any other international institute or agency should not influence the U.S. justice system, and 2) the President does not have the authority to order courts to reopen cases. The Supreme Court voted in Cruz’s favor 6-3.

Citing the Court’s ruling in Medellin v. Texas and Missouri v. Holland, Sen. Cruz and the other speakers are confident that the court will rule in a similar manner in the upcoming U.S. v. Bond. For Sen. Cruz, in order to uphold the Court’s own legal precedence and to maintain a balance of power between the president, congress, and the states, the Court must side with Ms. Bonds. If it rules against her, it would change more than the law, it would alter the values and principles on which our country runs.

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31. October 2013 by Will Houstoun
Categories: Government, Supreme Court | Comments Off on Heritage Foundation: Does the Treaty Power Threaten Our System of Limited Government?