Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to email@example.com; please put "blog comments" in the subject line.
And Also: Owners of construction company and vehicle safety systems companies in a "closely owned" corporation was deemed likely victors in a contraceptive mandate case in the 7th Cir., a split ruling with a lot of verbiage. This sounds like a possible compromise approach, though I still find the whole thing specious.
The person who help establish ScotusBlog has been a repeat player (again this week), but former SG Paul Clement has been the sort of modern day Daniel Webster in this field. Those who might disagree with his conservative bona fides still praise his abilities. I'll buy that. But, in various orals, so sorry, he comes off as a jerk, and one whose arguments are lame. I thought so -- on points -- in the DOMA case.
And, did so inBond, even though the majority basically being with him makes the matter somewhat moot. It might just be that his voice annoys me -- still listening to him was pretty tiresome -- the major theme was that the crime here was just sooooo obviously local and thus was not a proper enforcement of the treaty power. Lopez and Morrison was cited, but they were not really on point -- those cases held certain activity was not "commercial" for purposes of the Commerce Clause. Printz would have been a better cite -- it covered the "proper" nature of enforcing the power.
A major problem for me was that the clear lines his tone deemed so obvious turned out -- thanks from questioning from the women justices (Breyer was dubious about the government's position, trying to find some compromise position, such as citing the annex of the chemical weapons treaty in question) -- turned out not to be so clear. For instance, the very same act -- domestic as it might be on some level -- could be prosecuted if the chemical was completely banned (e.g., sarin). In fact, the very same chemical could be targeted, if used in a different way -- e.g., if a terrorist put it on the doorknobs of lots of homes in a certain location.
Gonzalez v. Raich was cited -- there a complete ban of marijuana was being enforced. Unsure how the growing state legalization policy (one in which the feds accept somewhat by limited non-enforcement) factors in here. Still, the overall line doesn't seem to work. Scheduled drugs, e.g., are in various cases highly regulated, but not completely banned. Misuse (and marijuana itself is not completely banned, to be technical about it) can be a federal matter, even though medicine has traditionally been a state power. [As an aside, Scalia raised a family law hypo and noted how that is simply not a federal concern. This is hyperbole -- it is/was in various ways, including DOMA, sec. 3, which he would uphold!.]
The SG was not in the mood for fine tuning, but it seems to be the carefully regulated chemicals in question are of apiece. Opiates, e.g., are not akin to aspirin. And, the administration of such a rule need not be a matter of some set list as long as some general reasonable rule is in place. Though I found the other side here dubious on the merits, to be fair, this flags a concern -- the SG did not (even when pressed by Breyer, a red flag) want to provide much of a "limit" to the Treaty Power in the sense of something that violated federalism concerns though briefly nodded to there probably being one. Since I think the facts of this case are not the outer limit of the treaty power, this hesitance was strategically risky.
His overall argument was that this treaty was agreed by both sides to be valid, so enforcement would be as well. He did not want to go into the idea that certain "self-executing" treaties might be acceptable, but not certain enabling legislation. The justices -- other than obviously thinking this prosecution inane -- were worried about the breath of certain modern treaties, which cover broad concerns, such as the fate of women or overall well being of the population. At times, the U.S. doesn't ratify because some fear it will lead to intrusive requirements (the home schooling movement, e.g., is concerned about one involving disability rights) though they might just be "self-executing" -- hortatory without teeth.
I can see how some of these treaties, if taken too far, can result in federal legislation on all sorts of things that would otherwise be of local concern. The treaty power intentionally was left open-ended, since some international agreements will affect otherwise local matters, such as debt collection, land matters, and back then, slavery. We can also entrust the structural limits and political process -- President makes, 2/3 of Senate required to ratify and then the usual process to pass enabling legislation such as law involved in this case. But, if some limit, including if something is not deemed truly "treaty-like," is necessary, so be it. The specter (the horror) of some treaty that requires the U.S. to end the death penalty or micromanage school lunches directly to promote the human right to adequate food might lead to such concerns. I get that.
Still, to repeat myself, chemical weapons are an international concern, and the treaty here is appropriate. The specific application here is also proper, including given the details of the case, down to (as Ginsburg noted) the behavior of the local police. The SG also should have underlined that the chemicals were not just run of the mill, but carefully regulated by the feds, and not of the caliber of chocolate for dogs or adding too much cleanser and poisoning goldfish. Such things, along with the not so clear lines of Clement when pressed, was not apparently much of a concern for a majority of the justices. They wanted more limits. We shall see.