morning encased 12158, bond v. u.s.. >> mr. chief justice and may it please the court. of the statute at issue year does reach every malicious use of chemicals anywhere in the nation as the government insists then it clearly exceeds congress''s limited and enumerated powers. this court's cases made clear it is a bedrock principle of the federal system that congress lacks general police power to criminalize conduct without regard to jurisdictional element or some nexus to a matter of distinctly federal concern. the president's negotiant and the senate and ratification of treaties with foreign nations does not change the bedrock principle of our constitutional system. >> the 3d is valid and the implementing of legislation

seems to largely copy without getting anything so the treaty could be constitutional but implementing legislation adds nothing is constitutional. >> i would quarrel with your premise. it is through the convention in the statute used similar terms and terminology. there's one important difference between the convention and the statute that differentiates the case and the difference is convention itself doesn't directly regulate individual conduct at all. and so all -- >> the convention tells the state's parties go regulate individual conduct in exactly the way this convention regulates state parties. and then what the legislation does is as justice ginsberg said just mirrored the convention as

the convention contemplated. >> taking quite precise with the convention says and this is article vii section i 33 a of the blue brief appendix what it says is each nation status on the convention agrees in accordance with its constitutional processes to pass penal laws that make unlawful for individuals, conduct that would violate conduct taken by an asian state and i suggest making that translation if you will between what violates the convention if you are a nation state and what would be comparable individual conduct is not obvious and when the government does that routine legislation there is no reason the penal legislation shouldn't have to comply as we promised. >> why not? there can be no doubt that chemical weapon treaty is at the forefront of our foreign policy efforts right now. look at the syrian situation

alone. it would be deeply ironic that we have extended so much energy criticizing syria when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional. we are putting aside the impact we could have on foreign relations. why is it if it is okay to regulate possession of marijuana, local ties, why is it unconstitutional to regulate the use of something that can kill another human being, a chemical that can kill or maim another human being? i don't understand where the disconnect is in terms of federal or state system. >> i think it gets down to the difference between rage on the

one hand and lopez on the other which this court held as a rational way to regulate commerce to prohibit certain items. >> there is no dispute that these chemicals were transported along interstate lines. that is not even disputed. >> i don't finger was disputed in lopez, the firearm would have to cross state lines the the problem in lopez was the federal statute was not structured in a way that had a jurisdictional nexus that made the statute applicable as a regulation. >> this case to decide the commerce clause question. the government didn't even a search it. they assert it now but as we took the case the issue was whether the treaty supported the laws. >> that is right, just as scalia and the government like a private party can wave a constitutional argument but on the other hand i would say we are not particularly concerned about the commerce clause argument because it has the same

basic defect as the treaty power argument. >> this goes back to justice ginsburg's question. could this treaty have itself regulated individual conduct? could the treaty have been still executed? >> i think that is an interesting question and i don't think the court needs to answer it. the position that if there were a self executing treaty that tried to impose criminal prohibition i don't think there's a treaty like that but if there were one i would say here that it violates the constitution's the the same basic reason this implementing legislation does. >> where would you find that in the constitution. there's a treaty power that does not understand subject matter limitations and indeed if you go back to the founding history is clear they thought about all kinds of subject matter limitations and james madison and others decided self-conscious not to impose

some. where would you find that limitation in the constitution? >> i would find in the structural provisions of the constitution and the enumerated powers of congress and -- >> the enumerated powers the treaty power. you would need to find a constraint on the treaty power. where does it come from? >> it would come from structural provisions of the constitution. if we had a skull executing treaty that reported a national level to commandeer signals to police officers i would think there might be the tenth amendment objections, enumerated powers objections, there might be an objection to that treaty. >> don't you think the word treaty has some meaning? is certainly true that going back to the beginning of the country there have been many treaties that have been implemented in ways that affect matters that otherwise would be within the province of the

states. one of the original purposes of objectives of the constitution was to deal with the treaty, the issue of the debts owed to british creditors and there have been cases about the property rights of foreign subjects, the treatment of foreign subjects, things that are moving across international borders, extradition and all of those but all of those until fairly recently, generally after world war ii all of those concerns, legitimate concern of a foreign state. that was the purpose of the treaty. can't we see something in that in the meaning of the treaty would was understood to mean when the constitution was adopted? >> that is right and i didn't mean in entering justice kagan's question to fully accept the premise that there's no limit on the treaty power whatsoever but i do think it is important to recognize in the context of

nonself executing treaty is there's an opportunity to leave for another day whether the treaty itself is valid because sometimes the treaty is not self executing precisely because the senate recognizes -- >> if you had been the president's council would you have advised him it was unconstitutional to sign the treaty as written? >> absolutely not but that is because it is a valid nonself executing treaty by its terms. doesn't do anything to directly regulate individual conduct and if i were the president's council i would have said i don't think this requires us to have any law that applies to garden variety of soils with chemicals but if you need that to discharge committee obligation the states are ready and able to shoulder that cast. there is no state in the country that doesn't have a general assault statute that would be covered by this conduct. no state that doesn't have a murder stands. >> the irony of what you said, many times the victim went to

the state committee and said please help and they turned them away and finally said go to the post office. this doesn't seem to be as you are arguing the state's dominion and in this very piece it wasn't until the state referred to the post office that any accent. >> one way to understand that is the state of pennsylvania exercise its prosecutorial discretion not to pursue this matter. i don't think the government says that exercise of prosecutorial discretion put us in violation of our treaty obligations. our treaty obligations to have a law that prohibits this conduct which the state's certainly do. the treaty obligation is not to make sure every use of chemicals is in fact prosecuted by state or local officials.

>> may i understand, your test is to say with respect to every prosecution under this treaty that a court has to ask what prosecution has sufficient nexus to national or international concerns. is that your test? >> that is not my test. the one thing i think i know from the court is the federal government doesn't have general police power. as i look at the statute it can be saved by essentials recreating a jurisdictional element out of the phrase peaceful and equating it with a non warlike or the statute does have this general characters and at least as applied to the chemicals which appeared dual-use chemicals can't be constitutional the implied. >> i'm still looking for test and a test of just articulated was directly out of your brief but if you suggest that is not the test give me the test we are

supposed to ask with respect to this case or any other as to whether the prosecution is unconstitutional. >> it is whether the federal statute exercises general police power and if it does -- >> sounds like a facial challenge. you made very careful to talk about this was as applied challenge to this particular prosecution. >> that is because the only relief i am seeking is to have my client's conviction vacated. this is the classic has applied challenge. the reasoning that the court may employee in vindicating my challenge may suggest the statute is unconstitutional in summer or different applications but -- >> you are saying if the statute extends to things that we have generally thought of as part of the police power that is sufficient? >> i would say if a federal statute exercise police power by which i mean it criminalize conduct without regard to jurisdictional element or some

nexus to a matter distinctly federal concern than that statute exceeds congress''s power. that was the case in lopez and morrison and unless you accept the narrowing -- >> nexus to the national consumers what i understood you to say in your brief but let me give you a hypothetical and tell me if your test needs it. say it is the same convention accept it relates only to gas and and there's a chemist out there, and implementing legislation mirrors the convention, the chemist out there who manufactures gas, sarin gas, pretty easy to manufacture and sent it through the ducts of a house and it kills everybody in it. does that have a nexus to national concerns? >> it does and it would be valid legislation because sarin is something that congress could prohibit in its uses. i understand how this applies to

certain gas or other things, schedule 1 sentences talked about in the convention and the treaty. those are unlawful. what is particular unusual about the statute's application to something like potassium dichromate or vinegar or whatever you have is most of its possession and uses are perfectly lawful and chemical weapon in the government's theory is when it is used purely intrastate in a malicious way. >> in my hypothetical and you didn't run away from it and i applaud that, in my hypothetical is a domestic use, use serin gas and you are saying the difference is the treatymakers found a category of chemicals more broadly. what i want to know is you are imagining a world in which judges day-to-day try to get

inside the head of treatymakers to think about in this case we understand there is a national interest in regulating sarin gas but not sufficient national interest in regulating some other chemical or some other chemical or so on down the line. seems to me a completely in determinant test and then would have judges take the place of treatymakers in terms of deciding what is in the national and international interest. >> i beg to differ. i think our approach to this case avoid judges being put in that difficult position precisely because we distinguish unlike the government between the validity of the convention and the validity of the implementing legislation and the implementing legislation, we simply ask the court to do what they do in every other context which is to check and see if the implementing legislation is consistent with basic chartering document. the government's position which i don't understand why this would work but their theory is

if the nonself executing treaty is valid and implementing legislation is somehow of valid. think about the convention before this court, obligation on any arresting official to provide notification to the consulate of arrested for national. it would be a perfectly rational way to implement a convention to have a national police force and every of arresting officer's federal officer fully apprised of the vienna convention responsibilities, a rational way to implement the treaty but remotely consistent with our constitution. on the other hand the same valid nonself executing treaty could be implemented by chartering of the state department to work with police officers on state and local level to understand our obligation. >> would it be difficult for the judge to ask is there any possibility that there is any other country in the world that has the slightest interest in

how the united states or any of its subdivisions deals with the particular situation that is involved in this case? >> i think that would be one way of approaching the question. >> that would be beyond the ability of federal judges went a case like this comes before them? >> i don't think it would be beyond their ability or beyond the ability of a federal judge to say let's hypothetically ask a question in the absence of nonself executing treaty. would congress passed the statute? if the answer is no then the burden shifts to figure out why is it is that the treaty adds something to the powers of the federal government and to make clear i think this is a different context from what the court had because the treaty itself prohibited individual action. an individual violated the treaty, took a migratory bird out of season and in that sense the enforcement statute did nothing more than put a criminal

penalty on violating conduct that was already prohibited to the individual. >> one way to characterize your argument or unfairly confine your argument to say what you are suggesting is something like a clear statement that if the treaties, nation states to have their own constitutional structures to be seated. at a minimum it has to say so and we will come up with a weekend do. >> a fair characterization of our argument but only to add this would be another case. the one place this convention talks about imposing obligations on individuals it is a promise by the nation state to pass legislation in accordance with their constitutional systems so it is bizarre, article vii section i section 33 a, the only way we are reaching individual conduct unlike the treaty and holland is the united states's

promise to pass legislation that comports with our constitutional process to say the convention therefore allows us to pass legislation that doesn't comport with our constitutional process. >> i don't understand how you distinguish sarin gas. why is sarin gas different from vinegar? >> sarin gas is more equivalent to something the congress would try to deal with the way it dealt with marijuana, it is a reflection of the idea when you are talking about things where the federal government is trying to prohibit it there's greater federal power to do that and with sarin gas you can imagine putting aside the treaty power it may be with sarin gas even under the war powers the congress could say that is something they is inherently a chemical weapon and we will prohibit people from having it. that is different from these situations where if you think about it the only thing that

makes these chemicals chemical weapons instead of chemicals is internal interstate used in a malicious way and that is different from a hypothetical statute, here are -- three schedules in the statute, 43 chemicals that are problematic. of the federal government would regulate those and prohibit the unauthorized possession of those i don't see why they couldn't do that with or without the treaty. what is so anomalous is the idea that these chemicals, everything, rat poison, vinegar, whatever it is, these things are perfectly lawful, we don't think of the mess chemical weapons, and unless and until they are used in a malicious way and all of a sudden they become classified as chemical weapons, very odd statute but it does operate in a way that is inconsistent with the bedrock principle that the congress doesn't have this kind of police power. >> the chemical used here, one of the chemicals listed in the annex to the treaty.

>> i don't believe so. is not one that is listed on the three schedules. there are 43 chemicals, neither of these are on their but there is an important difference. perhaps an odd way to think of it but this is a statute that is trying to regulate -- chemical weapons -- with respect to something like weapon is chemicals or sarin gas it makes sense to say those are chemical weapons but with respect to otherwise harmless chemicals the only thing under the government's theory turns them from chemical weapons, isn't a noun, it is over, malicious use and put you in a very odd situation. congress had come in and said there are certain chemicals that by their very nature almost inherently weapon is congress would have a lot more authority to proceed. >> we permit that in all sorts of definitional section of criminal code. we call a dangerous weapon

anything that you used to inflict serious injury on someone. i don't think of a car as necessarily a dangerous weapon. it is something i used to transport myself. only when i am using it for particular purpose that it turned itself into a dangerous weapon. i am having a problem with this known/durbin distinction. why isn't the intentional burnings and killing of another human being using chemicals the essence of what this treaty is trying to stop? the treaty permits exceptions for any people purpose. >> generally you might be right that it criminalizes it in a

malicious way but many is that -- at the federal level you need something else, jurisdiction will element, something that has a distinct federal concern. concerns about -- >> treaty power. >> i don't think -- essentially when this disconnect between what the treaty power does and what the statute does which is the treaty again does not directly regulate at all individual conduct, it is regulated at nation state conduct. with all due respect i don't think nation status boys and romantic rivals attempt to commit suicide or try to get rodents out of their houses. when individuals do those things, it is hard to draw an analogy between what is forbidden to a nation state and individual actions but any work that is done in the statute by drawing that analogy is done by the statute and not by the conventions of -- >> terrorists of these chemicals and put it on every doorknob in

boston, that's what the regulated by this? they are the exact same chemicals. >> we would say under our narrow wings construction that that is covered. you would point out that the same conduct would be covered directly by federal statutes that target terrorism threats so no matter how you decide that case, exxon narrowing construction the conduct would be covered by two federal statutes. if you don't except construction the statute is unconstitutional and the conduct will be covered. i just think when you try again to think about what the convention is after it is not really after mr. bond's conduct. i don't think any treaty partners said oh my goodness, there has been in deployment of chemical weapons in pennsylvania. i hope the united states steps up to treaty obligations and prosecute its deployment of

chemical weapons. nobody would say that because no one speaking normal english one identified this as a deployment of chemical weapons. >> it is clear the treaty was after enforcement with respect to the prohibitions that the treaty and forced this as individuals. and consistent with your constitutional processes and congress passes a law consistent with this constitutional process and it completes the treaty. >> two things neither of which will surprise you. one is i don't think this is consistent -- >> trying to figure out why. holmes dell with this in missouri vs. hollinger. the treaty powers and enumerated powers, necessary and proper course that functions to allow congress to give perfect to the treaty power. this is the situation with the prohibition on the state in

terms of entering into treaties. these invisible radiations you think come from the structure of the constitution rejected this argument, the same argument you are making, the emanations of the constitution. >> i think you have to read in the context of the treaty and the argument, missouri made a strange argument that no modern litigant would make. an argument they went out of their way to identify conflict between the federal treaty and state law and said we win and the premise claus and holmes had and said no. the treaty under article vi invokes state law, not the other way around but you also said the one sentence that lower courts will here, if the treaty is valid the legislation is valid. that makes sense in the context

of the treaty because the treaty directly prohibited individual conduct and a statute that enforced individualized prohibition with criminal penalties. in that case it was right. the treaty and implementing legislation stood or fell together. that is not the case if i could reserve my time. >> thank you, cal. >> mr chief justice made please the court. the framers gave the federal government exclusive control of the greek functions selected did the nation together and local limit on treaty power can't be squared with the judgment framers made. this court's precedent or consistent historical practice since the time of the founding and it would compromise foreign affairs and national security interests of the first quarter. >> let's suppose there is a

multilateral treaty, international convention to assure that national legislatures have full authority to carry out their obligations, the national legislature has the police power and congress passes a statute saying we have the authority to prosecute a purely local crimes pursuant to this international convention the president has signed. any problem with that. >> there may well be. let me walk through the analysis you have to go through. i would make a point that it seems unimaginable that a convention of that kind would be ratified by two thirds of the senate. >> why is it unimaginably would bring his prosecution? that does go to that. >> the point is it is the transfer of authority to the national legislature. i don't know why you would look to the national legislature for that. >> the framers thought the two

feared guarantee, the two thirds ratification requirement was an important structural guaranteed to protect the interests of the state at a time the senate was elected by state legislature. >> yes, no doubt the framers thought that would be an important protection but beyond that this court has said that there is never held that the unratified treaty exceeds the federal government constitutional authority, never held a provision implementing a ratified treaty exceeds the federal government's constitutional authority. >> of the unimaginable things happen in would be ok? >> no. my answer is the court has said that there is an inquiry into whether it is a proper subject of a treaty and the inquiry could take into account whether it is imposing a fundamental change in the character of the government but that is not a question the court needs to answer here because of its

treaty, the petitioner concedes is a valid exercise of the treaty power and the legislation implementing this treaty is with the obligations of the agreed the. >> would not be a valid exercise of the treaty. there is serious conflict with international obligations because we look at the federal government, does not have the authority to should tell the sheriff in texas what to do. that caused a great deal of strain in international relations. i think the united nations could well say we don't want to parties to deal with whether it is somebody in this case or that province that has the authority. every signatory must have the authority. doesn't strike me as not reasonably related to international obligations. >> this is a valid exercise of treaty power and there is no daylight between implementing legislation and obligations that

-- that may be a question the court has to answer in a different case that this case doesn't present that. >> the purpose of my hypothetical was to find out if there is any situation in which you believe erosion or intrusion of federal government on the police power could be a constraint against international treaty. >> there maybe an hour bound but this case is no where close to it and it can't be a too local exception to the treaty power. >> you save vermeil be an out rebounded this case isn't one of the. you are subject yourself to the same criticisms leveled against the other side you are proposing a case by case evaluation with respect to each treaty. >> the question here is whether this legislation devoutly implements a valid treaty.

the treaty is valid. >> no daylight between the treaty and implementing legislation. it seems there is a lot of daylight. i take this example. not because it is controversial but because it relates to an area where the federal government has never been fought to have a 40 namely family law. no federal marriage, a federal adoption, let's assume an international treaty is approved to approve same-sex marriage. if that were a self executing treaty, same-sex marriage would have to be approved by every state.

if it is not self executed however, it will be up to congress to produce that result. congress would do it or could do it at least by having a federal marriage law. and then you would have to have of federal divorce law and the federal adoption law. i think there is a big difference between just doing it through a self executing treaty and dragging the congress into areas where it has never been before. there is daylight between the treaty and requiring the treaty to be implemented in the fashion you assert is necessary peer. >> i would like to make a structural point and a specific point. the structural point is this. if it is the case as a hypothetical seems to concede, that a self executing treaty

that requires two thirds of a senate to ratify it can impose an obligation of that kind than it has to be the case that a nonself executing treaty that has the same approval of the president and the scene two thirds ratification and additional protection of passage of legislation by the senate and the house and signing a lot to the president does what this of executing treaty can do. has to be the case the power -- >> i don't think it has to be the case. >> requiring states by self executing treaty, same-sex marriage and dragging the the federal government for allowing the federal government to enter into this whole field of marriage, divorce, adoption, family law where the federal government has never been. >> with respect to this treaty, with all due respect i don't think there's any daylight with

respect to this treaty. section 229 a does what the treaty obligates the united states government to do and the notion that the treaty obligation can be satisfied by relying on the states to enforce their assault laws which is the core of my friend's argument is contrary to the history of the framing. >> i can't yet to get my mind to these dramatic questions whether at the local police power or some other inherently state power make a treaty beyond the power of the federal government to enter into, a very big question. we are not there yet. the reason i am not there is because there are some words in this treaty called other peaceful purposes and we have to interpret those words and the same are in the statute. my question to you is what reason is there to think that

those matters on list a fall within that. what is a list a? >> it is infinitely long. a few things on it are -- the great case on the attempted murder. holmes talks about paying a small boy to move a barrel of kerosene with a candle in it lit so that it will burn down a barn after a few hours. the kerosene is of chemical. he talked about a case where a person went to a racetrack and gave a horse a poison potato. he talked about a case involving somebody else trying to light a match which is a chemical and setting fire to a haystack. we can all think sadly of athletes, when saw armstrong at least accuse of unlawfully taking drugs. why do we think matters of list

a fall within those words outside the words other people purpose even though their unlawful? did anyone say to the drafters of the convention i found nothing in this brief on the point or did anyone tell congress that poison potatoes, drug enhancing or performance enhancing drugs, the example justice toledo -- justice alito gave of giving poising to goldfish, their chemicals and absolutely nothing to do with chemical weapons and why do we think we have to get beyond that fact? >> a very important point here and it gets to the heart of what the national interest is in this case with respect to this treaty and the legislation and the harm in the process of line drawing.

what the petitioner is asking, constitutional law or statutory construction, courts on a case by case basis after the fact make ad hoc judgments. >> there is an easy way out. chemicals involved are the chemicals, you are not prepared to say that. >> i am not. >> once we get outside the anax we have to draw lines or we have to say this encompasses the poison potato or bold fish or the candle or performance enhancing drugs. judges are here to draw lines and between drawing those things into it or drawing lines is better to draw a few lines. we can talk about hypotheticals but they are hypothetical. and the goldfish -- >> not real case. >> they are not real cases

because you haven't prosecuted them yet. if you told ordinary people you are going to prosecute mrs. bond for using the chemical weapons, they would be flabbergasted. it is so far outside the ordinary meaning of the word. there is an enormous threat, anything that can cause death or injury to a person or animal, would it shock you if i told you two days ago my wife and i distributed toxic chemicals to a great number of children? [laughter] >> chocolate is poison to dogs so it is the toxic chemical. >> i would like to take care of that. >> there is a chocolate all over

the place. >> this is serious business with all due respect. the line the petitioner is asking -- >> i want your answer. my question was of question to get your answer and the answer i wanted you to address yourself to is the problem of ones you depart from the anaxes in defining the chemical you throw into it a list a thousand miles long and we can tell jokes after joke but it is not a joke, it is so easy to make up examples that seem to have nothing to do with the problem of chemical weapons like the syrian problem. >> i understand that. >> what is your answer? that is what i want to know. >> if i answer the question this way, the line the petitioners asking courts to draw is whether the particular uses his warlike

or constitutes a peaceful purpose under this convention and under the implementing statute. >> one of the things we are trying to sort out right now or in syria under the chemical weapons convention is where the line is between peaceful uses and warlike uses. this frees peaceful uses is not only in the chemical weapons convention but the nuclear non-proliferation treaty and we are engaged in sensitive negotiations under the nuclear non-proliferation treaty trying to draw the same line and it would be terribly unfortunate i would submit if the court were to announce in the context of this case, the petitioners asking the definition of what warlike constitute that would have an unfortunate -- >> can you tell us what the line is we are trying to draw? >> the framers of the convention

and congress implementing the convention made a judgment that there needs to be a comprehensive ban and you can't be drawing these. >> can i ask why that is? this convention and implementing legislation is very broad and it is broad because it applies to large category and a large category of uses, of conduct. what were if they thinking about, why they wanted these broad categories? why is limited to is the conduct, >> how chemical the going to be used and combinations count how dangerous. >> i am intending to draw the line. and national security interests

the first time i heard that. and the national interest of the united states to attempt to draw the line. and how to push this case. is that what you are telling me. and hurting national security? >> there is a real risk in courts getting involved be finding a line between war like and peaceful purposes. and when it is drafted broadly. there are additional risks in terms of the very act of line drawing, case by case judgments about what constitutes a violation and what doesn't is going to undermine the ability of negotiators to make treaties in the future. >> you did not give a line to the chief justice's question

where there was a treaty that included the federal structure, gave the treaty where the president is required to set aside any state law that in his view contravenes the national interest of the structure, you have given us no principles the other way. >> what justice kennedy would decide in this case for the court to conclude that the jews -- the local limit the petitioner is advocating here as applied case by case to local limit is not one that is inconsistent with the constitutional structure because if you go back to the framers is clear from the era of the framing that framers intended to give the national government power -- >> a treaty cannot be inconsistent with our constitutional structure. >> this court has said

repeatedly that the question is whether the subject matter is up proper subject for a treaty. that is a question the court can ask though i am not prepared to draw a specific line here today there may well be a line to be drawn but the petitioner has conceded and all of us would agree this is the proper subject of the treaty. >> there are a lot of trees as justice alito pointed out where you have international conventions affecting everything, international conventions on the abduction of children, international conventions, human-rights, cover a vast swath of subject matter and the only thing you are saying was a limit on what the treaty power can be a source for is some determination note less barbara terry van lines others are asking us to draw between what is appropriate under treaty power and what is not and a

fairly precise answer whether there are or are not limitations on what congress can do with respect to the police power. of the authority is asserted hundred treaty is there a power to intrude upon the police power unlimited? >> if the treaty -- the way i would answer that is if the treaty is valid -- >> the treaty is valid then implementing legislation that doesn't go beyond the treaty is valid if it addresses the subject that would otherwise be within the police power of the states. that was the judgment framers made and that is this case and because the treaty is valid petition is conceded the treaty is valid and this implement the treaty word for word implementation of the obligations of -- >> you would rather have the court determine if we are concerned about intrusion on police power whether treaties

are valid or not, determine whether particular implementing legislation is valid or not. >> because it is conceded in this case that the treaty is valid and petitioner hasn't elaborated any principle that would allow this court to make a judgment about when and exercise of treaty power is valid you take as a given that the treaty -- >> the hypothetical, i am trying to get your general principle. i can imagine treaties you would say are within the treaty power particularly in the post-world war ii era but that could give rise to implementing legislation i think would be extraordinary from the point of view of the framers and power of congress to intrude on stage authority. there is a structure of limitations. >> as i said earlier, two thirds ratification requirement israel with respect to one of the treaties your honor just referred to, civil and political rights when the senate ratified

it, it did use its power to make reservations, to preserve our federal system so that is exactly the manner framers intended to protect or safeguard the inserts and there are a thousand ratified treaties and we don't have congress using the treaty power to usurp the role of the state. >> that is the question and will hold that the that some people think we have exactly that in this case. usually when we have a case that implicate significant and serious bilateral concerns we get a lot of grief from treaty partners. is there any concern expressed in any concrete way by them about whether this is prosecuted? >> i doubt that. we are not saying -- nobody would say whether or not miss bond is prosecuted will give rise to international incident. the question is whether congress has the authority to pass a

comprehensive ban. it may be applications of a comprehensive ban that don't advance national interests in profound or poignant way. we understand that but the question is whether congress passed a comprehensive ban implementing the treaty. >> we have a brief from almost all the legal counsels of the state department, republican and democrat talking about how it's argument were accepted it would severely damage the united states's ability to negotiate a treaty. >> a national branch of government for the state department would like to have as much authority as they can get to negotiate treaties. we are concerned about limitations -- do we have any state legislatures, state authorities concerning intrusion on their prerogatives? >> this is a convention that all

but four nations have signed. the legislation we have enacted is mall legislation, 120 other nations have enacted as well. >> the report is issued decisions in recent years holdings that there are some limits on congress's power, cases like lopez and morrison, legal commentators have written articles saying act could be circumvented through use of treaty power. do you agree with that? >> i don't think there's a yes or no answer. i don't think -- the question would be what the treaty power would encompass. it wouldn't be a circumvention. >> back the word circumvention. could you reach the opposite result? could congress regulate the possession of a gun within a school zone by entering into a treaty? and authorize such legislation?

>> in that case the question is whether the treaty is a valid exercise of the treaty. >> i don't mean to cut you off but at some point you seem not to see a problem that i think i see. and the problem underlying it if you get into the treaty area is this. given the power as there is in many majorities, some self executing treaties. in principle your position constitutionally would allow the president and the senate, not the house, to do anything through a treaty that is not specifically within the prohibition of the right and protection of the constitution. and i doubt that in that document the framers intended to allow the president and senate to do anything. you asked us to say whether the answer to that question is yes or no, you have a democracy of

when the house was out. and i am worried about that. i asked you, isn't there an easier way to deal with this case and you tell me know. because we will interfere with some problem of foreign affairs that was never mentioned in any brief or at least hit you for the first time when you said it. there you have an expression of my uncertainties at the moment and any way you want to apply to that would be helpful. >> i understand the point, i understand something that seems attractive and trying to think of the question of statutory construction. i'm trying to point out it is not as easy as it seems, there are real risks to trying to draw a line of that kind.

i understand that does raise the stakes, i understand that but that risk is real and i think that risk is real, the risk the state department legal advisers briefed pointed out is real. >> you haven't answered directly why this does constrain the treaty power, implementation of at, why is it different from what the court expressed in many cases? and the bill of rights has checked. >> is a historic and to that question, that is how the framers understood it. that is clear from what hamilton said in quote we have in our

brief and other framers understood that is where the line would be and the reason is the treaty power is itself a great and substantial independent power of the national government and not constrained by too local limitation. that is the lesson of the framing that there's not a too local limitation on the exercise of treaty power. those quotes pertain to self executing treaties. there is no limitation on what the president and the senate can impose as a self executing requirement, give back to british citizens property that they confiscated or whatever else but this is a different question. and the federal congress into areas that it has never been before. separate question and neither

hamilton nor any of the other quotes you referred to address that question. >> so long as there is a valid exercise of the treaty power, if all you do is implement the treaty it is a valid exercise of congress's power, i said earlier this is serious business, i understand the principles of federal or serious business also but federalism is a 2 way street and with respect to the exercise of treaty power the framers made a judgment that this power was going to be exclusively in the hands of the national government and needed to be in the hands of the national government in order to ensure united states could be full sovereign on the world stage. the subject matter is different than it was at the time of the founding but the framers understood that. they were careful not to impose

limitations on the treaty power because they were wise enough to know they could not foresee what might be important for the united states to negotiate on world stage to participate fully as sovereign. the chemical weapons convention is deeply at illustration of exactly why the framers were wise in ensuring there were not subject matter of limitations on the exercise of treaty power. chemical weapons convention, united states leadership in chemical weapons convention has made a big difference in ensuring this norm which is in our national interest, foreign relations interest and national security interest is a normal the nations of the world have agreed to end we are in a position to have leverage to insist the nations of the world abide by.

we are trying to exercise right now, it is critically important and i submit feline the petitioners asking this court to draw is not consistent with the intent of the framers and the national interest i have described. >> thank you. mr. clements, four minutes remaining. >> a few points in rebuttal. first of all the senate's role in the ratification of treaties cannot be a sufficient political check and the reason is sometimes the precise role they play is to make the treaty nonself executed and to take a justice scalia's idea of an international treaty to regulate marriage rights one thing the senate very well might do in that case is ratified -- or use spending power since states on

board. and the nonself executing treaty necessarily even if it is valid guarantees the relatively of the enacting legislation. some of the reason the treaty is nonself executing is to preserve federalists. the second point is to respond to the argument i already explained why is not correct but the suggestion there is no daylight between the convention and the statutes. there is huge delight which is whether it affects individual conduct and how it affects individual conduct. with all respect everything on justice briar's list a is not stuff that implicates the convention at all. under the government's unwavering theory you can't make limitations on the statute that is covered by the statute. and the statutory construction argument is one way out of this, you have to understand the way it is used in the statute, i would analogize a situation

where two scientists get in a fist fight. that is not conduct we would condone but we have not violated the pledge to -- or any peaceful purpose. the government says you can't do that or mess up what is going on in syria. the issue in syria is whether or not the nation state in syria is doing something to violate the convention if contrary to the fact they were signatories to this convention. make clear you are only talking about individual conduct buchanan's all the problem right there but the only way the government assures you you can make the legislation work is have it exercise police powers, the answer is the legislation -- >> can i ask you a variant of the hypothetical i gave you before and focuses on your statutory point, a peaceful purposes. suppose miss bond used sarin gas and sent it through the ducts of

house, would you say that is a peaceful purpose? >> it is not bad has to do more with the particular qualities of sarin gas, the fact that it is on schedule a and no one can express lawful use and what makes something like vinegar or potassium dichromate different is what put it over the edge, ordinary chemical to chemical weapon, precisely its use and use alone. you asked a great question. what was conquers thinking when they did this? congress wasn't focused on this issue at all. if you look at the legislation to implement this, the chemical industry and others. nehr was the fourth amendment problem with the inspections of chemical production facilities of the rise in the convention. when congress had the constitutional problem in front of it they have all sorts of provisions to deal with the constitutional concern. the future miss bonds of the world at the same lobbying resources as the chemical industry. that is why a clear statement

rule or the like would make perfect sense, to make sure congress doesn't exercise police power when all it thinks it is doing is implementing a treaty. the last thing to say about state department -- >> the statement about the treaty -- i am sorry. >> thank you. the case is submitted. >> every weekend since 1998 booktv brought you the top nonfiction authors including hanna rosen. >> increasingly women's identity is tied up to their work in a way we may not like. which we may find disturbing and unnatural but when i look at the mayor who was recently chosen to be the ceo of yahoo! when she was visibly pregnant and was asked how much maternity leave she wanted to take and said basically none, the fact that such women exists is not the