TED CRUZ JANUARY 20, 2014
“I am going to make your life a living hell,” Carol Anne Bond told her best friend, Myrlinda Haynes, after learning that Bond’s husband had impregnated her. As a microbiologist, Bond took the revenge in a scientific direction and placed homemade arsenic in Haynes’ mailbox and car. The bizarre plot never worked; Bond placed the poison twenty-four times but it never injured Haynes beyond causing a small burn on her thumb. After the police were alerted, Bond was finally captured and sentenced to six years by federal prosecutors for violating the statute that implements the Chemical Weapons Convention.
And with that, what sounds like a script for a bad made-for-TV movie became a Supreme Court case and a cause celebre in right-wing legal circles. In Bond v. United States, her lawyers have tried to use her case to argue that the federal government is utilizing its treaty power, through the Chemical Weapons Convention in this case, to suppress the power of individual states. This is a violation of the Tenth Amendment, they argue. Bond, they say, should only be sentenced under Pennsylvania law—which would mean she could have walked out of jail in as little as three months.
Bond’s cause’s latest champion does little to reduce the circus ambiance: It’s Senator Ted Cruz. Via a lengthy essay in the Harvard Law Review, the Texas Republican argues for Bond’s position and expounds on the dangers of the President’s treaty power. While the Constitution says in Article 6 that treaties are the “supreme law of the land,” Cruz is seeking to take on the President’s power over a grayer portion of the law: just how to formulate and implement treaties.
There’s a long history here. In 1920, the Supreme Court decided the case of Missouri v. Holland, which established that a state could not take action that would undermine a federal treaty. This was precisely the danger that James Madison had warned of in Federalist 44: While “a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions,” he argued, we cannot let the state win out over the national. Such a situation would create “a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”
Since our founding, the nation has accepted the need for treaties to be the supreme law of the land, but there has always been a current of right-wing thinking that views treaties and international institutions as an affront to democracy: Take Henry Cabot Lodge’s opposition to the League of Nations, American Bar Association, President Frank Holman’s attacks on the Genocide Convention in the 1950s, or Senator Bob Corker’s recent condemnations of the United Nations Disabilities treaty. But while Republican leaders like Dwight Eisenhower once stood up against things like the Bricker Amendment—an attempt to reign in the President’s treaty power led by right-wing isolationists—there are few GOP voices today eager to shout down the knee-jerk skeptics of international law. In a conservative movement that ranks Agenda 21 (a nonbinding UN Resolution on environmentalism signed by President George H.W. Bush in 1992) as a major threat to the United States, the result is good politics for Cruz.
Alas, Cruz is dangerously misinterpreting the Constitution. While the Tenth Amendment reserves to the states those powers not given to the federal government, the President needs the ability to effectively negotiate treaties without guessing which topics are reserved for the states. Six former legal advisers to the State Department (serving both Democratic and Republican administrations) cautioned against a ruling that would “hinder the President’s ability to negotiate new treaties that may serve the national interest.” While conservatives may seek to vilify treaties as abridging the power of the states, the fact that two-thirds of the Senate must ratify a treaty makes them a poor tool for federal intrusion on state affairs.
While most of the country has ignored the arcane legal questions about the Treaty Power posed by Bond v. United States, the Republicans are prepared to pounce on the issue if the Supreme Court rules against Bond and upholds its precedent in Missouri v. Holland. While it’s unclear where the Supreme Court will come down on this case involving a vengeful microbiologist, it is clear that the right’s hatred of treaties and international institutions isn’t going away. If he does run for president Ted Cruz may be the first modern GOP candidate to include a Harvard Law Review article in his presidential campaign.
Sam Kleiner is a fellow at the Yale Law Information Society Project.