- While Bond v. U.S. ruling was a letdown, notably absent was a liberal concurrence defending broad treaty power against critique of Thomas, Scalia et al [Noah Feldman, Bloomberg View, Peter Spiro/Opinio Juris, Julian Ku and John Yoo, David Golove And Marty Lederman]
- Think before you ratify: in controlled experiment, framing proposed change in domestic law as “required by human rights treaty” boosted support especially among Republicans [Spiro/OJ; more on international human rights treaties here]
- Sen. Ted Cruz publishes “Limits To the Treaty Power” in Harvard Law Review Forum [FedSoc Blog, Nicholas Quinn Rosenkranz]
- “The Ever Expanding Role of Trade Agreements: Human Rights” [Simon Lester, Cato]
- EU brass, reformist NGOs insisted that Romania shut down international adoption. Too bad what happened then [Meghan Collins Sullivan/World Affairs Journal, Stephen Beale/National Catholic Register]
- UK plaintiff’s firm Leigh Day helping Caribbean nations in reparations suit against UK [Telegraph, related]
- Not so liberal: Russia cites U.N. Convention on Rights of the Child in rationalizing anti-gay legislation [Box Turtle Bulletin; related on illiberal treaty applications in internet censorship (related), marijuana (related, earlier)]
A jealous wife’s attempt to poison a rival gave the Supreme Court a splendid chance to detoxify a pernicious constitutional law doctrine about the scope of the treaty power, but yesterday the Court passed up the chance. [Earlier.] My colleague Ilya Shapiro explains. Chief Justice Roberts, for the majority: “The global need to prevent chemical warfare does not require the federal government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
P.S. Congratulations to my colleague Nicholas Quinn Rosenkranz and the Cato Institute amicus program (i.e. Ilya Shapiro) for the way Justice Scalia in his concurrence picks up whole chunks of argumentation from Nick’s 2005 HLR article on the treaty power and Cato’s recent amicus brief based on the same line of argument. Also, for those keeping score, this is another embarrassing 0-9 goose-egg defeat for the Obama administration, which once again took a position totally aggrandizing of federal government power and once again could not win for it the vote of even a single Justice. [piece slightly revised for style Tues. a.m.] More: Cato podcast with Ilya Shapiro.
“As part of trade talks, the European Union wants to ban the use of European names like Parmesan, feta and Gorgonzola on cheese made in the United States.” Having achieved some success in negotiations with Canada and Central American nations, Europe may seek to restrict marketing of U.S.-made cheeses such as Asiago, fontina, Muenster, and Neufchatel.
And it may not be just cheese. Other products could include bologna, Black Forest ham, Greek yogurt, Valencia oranges and prosciutto, among other foods.
No word on renaming French fries. [AP]
- Environmental advocates and their fans in the press come off badly in Chevron/Ecuador litigation scandal [Coyote, earlier]
- Drought disaster unfolds in California’s Central Valley, where project water is allocated by fiat, not bid for in market [Allysia Finley, WSJ; San Jose Mercury-News]
- Other large democracies resist the idea of packing environmental terms into trade treaties, and maybe they’re right [Simon Lester, Cato]
- “A Tough Day in Court for the EPA’s Greenhouse Gas Regulations” [Andrew Grossman]
- R.I.P. leading environmental law professor Joseph Sax [NYT, I discussed his work in Schools for Misrule]
- Lawyers have hijacked Endangered Species Act [Congressional Working Group report via Washington Examiner editorial]
- When science begins bringing extinct animals back to life, watch for unintended legal consequences [Tyler Cowen]
A testy exchange between Justice Stephen Breyer and Solicitor General Donald Verrilli Jr. “was not the only signal that the administration may have difficulty winning in the case of Bond v. United States, which began as a ‘lover’s triangle’ dispute from Pennsylvania but has mushroomed into a major test of the power of Congress to implement international treaties in ways that may interfere with the prerogatives of the 50 states.” [Tony Mauro, NLJ, Daniel Fisher, earlier on Bond] Michael Greve finds the administration’s stance “breathtakingly aggressive. … when the government stumbles into Court with no principle, rule, or line to cabin its assertion of power, it loses. That’s Lopez, that’s Morrison, that’s NFIB.” [Liberty Law] Related, Peter Spiro/OJ.
From Cato, with video: “In 1920, in Missouri v. Holland, the Supreme Court seemed to say, contrary to basic constitutional principles, that a treaty could increase the legislative power of Congress. That issue is now back before the Court in Bond v. United States, a case with deliciously lurid facts involving adultery, revenge, and the Chemical Weapons Convention. Cato has filed an amicus brief in the case, written by Nicholas Rosenkranz, based on his Harvard Law Review article on the subject.” Earlier here.
David Bosco, assistant professor at American University and contributing editor at Foreign Policy magazine, tweeting about the U.N. international small arms treaty that’s met with intense opposition from some gun-rights groups:
I predict US will sign arms trade treaty late on a Friday afternoon in summer.
— David Bosco (@multilateralist) June 4, 2013
Backers may mount a new push for Senate ratification of a treaty that signs away national sovereignty over various not-unimportant areas of domestic policy, on the rationale that its effects will be mostly symbolic since we have already enacted the far-reaching Americans with Disabilities Act (ADA). Iain Murray and Geoffrey McLatchey note that despite claims by proponents from President Obama on down, it is simply untrue that the Convention on the Rights of Persons with Disabilities (CRPD) does no more than elevate into permanent treaty status the ADA’s requirements:
…its provisions far surpass the ADA’s.
For example, the convention’s Article 27, which prohibits “discrimination on the basis of disability with regard to all matters concerning all forms of employment,” is a giant leap from the ADA’s employment standards stating, “no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” [Emphases added]
“Covered” entity and “qualified” individual are two major constraints on the regulatory scope of the A.D.A., and that’s just the start of the many ways in which the CRPD is of broader scope. I give many more examples here (see also).
Murray and McLatchey also note that
The CRPD also requires the United States to set up a propaganda agency. Yes, you read that right. Article 8 states that signatories must take “immediate and effective measures … to raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities.” It becomes the federal government’s duty to “combat stereotypes… in all areas of life” by “initiating and maintaining effective public awareness campaigns.”
Hans Bader points out another danger:
UN committees like to define free speech as discrimination against minority groups in violation of international treaties, making it dangerous to ratify such treaties. For example, the U.N. Committee on the Elimination of Racial Discrimination has ruled Germany violated international law by not prosecuting a former legislator for remarks to a scholarly journal about Turkish-immigrant welfare recipients that were deemed racially offensive. The UN committee ruled Germany’s failure to prosecute the speaker violated the International Convention on the Elimination of All Forms of Racial Discrimination.
While “anti-disability” speech is perhaps not as familiar concept than speech which offends sensibilities of race, religion, or gender, existing disabled-rights law has generated numerous cases in which speech considered insensitive or hurtful toward persons based on physical, mental, emotional or behavioral disabilities is taken as evidence of an unlawful “hostile environment.”
- Let’s hope not: is Kony case reconciling conservatives to International Criminal Court? [New Republic] Sea Shepherd case shows Alien Tort Statute can serve “conservative” as well as “liberal” ends [Eugene Kontorovich, earlier]
- “Why the U.S. Shouldn’t Sign On to Empty Human Rights Treaties” [Eric Posner, Slate, earlier]
- Or maybe non-empty? U.N. Convention on Rights of Persons with Disabilities said to require enactment of strong Europe-wide equivalent of ADA [Disability Law]
- A questionable free speech victory at the U.N. on defamation of religion [Jacob Mchangama]
- Tales of “independent” court reports that weren’t: “Chevron-Ecuador case expert switches sides” [SF Chron, December]
- New Kenneth Anderson book getting lots of recommendations: Living with the UN: American Responsibilities and International Order [Amazon]
- “Revive Letters of Marque and Reprisal to Launch Cyber-Attacks Against China?” [Julian Ku/OJ]