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William Courtney, MD
Candidate for the United States House of Representatives, 2nd District of California

ANALYSIS OF BOND v. UNITED STATES TREATY ISSUES AND ITS IMPACT ON FEDERAL DRUG LAW ENFORCEMENT

Issues

Last June the Supreme Court rendered a stunning 9-0 decision in Bond v. United States that has enormous implications for limiting the enforcement of Federal drug laws. The key to understanding Bond, which reviewed the authority of the Federal government to make and enforce Federal laws based upon treaties, is understanding another treaty, upon which all our current drug laws are based. Unfortunately, most lawyers and law professors are too ignorant of the history of our drug laws to make an intelligent evaluation of the real impact of Bond as it applies to the enforcement of Federal drug laws. For example, most legal experts who analyze the Bond decision will, in all likelihood, fail to make the connection between the treaty that defines Bond and the treaty that defines the Controlled Substances Act. However, the critical importance of this case was not lost on the legal eagles at the Cato Institute, which understood the treaty issues and filed a brilliant amicus brief in this case.

Just in case you think treaty issues are not critically important to Federal authority to enforce drug laws within the states, consider the question of why it was necessary to pass amendments to the US Constitution to start and end alcohol prohibition, but no such amendments were necessary to outlaw cannabis. The answer is that unlike alcohol, the creation of the CSA was justified by treaty, which was then used as a collateral attack upon the 10th amendment.

It is because our current drug laws are based upon the Single Convention Treaty, that the Bond decision is incredibly relevant for defending the rights of Californians against Federal raids, arrests, and prosecutions, as well as the right of California voters to opt out of the CSA through the voter initiative process.

CAROL ANNE BOND was indicted in the United States District Court for the Eastern District of Pennsylvania for, among other offenses, two counts of violating §229. Section 229 forbids knowing possession or use of any chemical that “can cause death, temporary incapacitation or permanent harm to humans or animals” where not intended for a “peaceful purpose.” §§229(a); 229F(1); (7); (8). The statute was enacted as part of the Chemical Weapons Convention Implementation Act of 1998, 112 Stat. 2681–856, 22 U.S.C. §6701 et seq.; 18 U.S.C. §229 et seq. The Act implements provisions of the Convention on the Prohibi¬tion of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, a treaty the United States ratified in 1997. In the District Court, Bond moved to dismiss the §229 charges, contending the statute was beyond Congress’ constitutional authority to enact. The District Court Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court denied the motion. Bond entered a conditional plea of guilty, reserving the right to appeal the ruling on the validity of the statute. She was sentenced to six years in prison. In the Court of Appeals for the Third Circuit, Bond renewed her challenge to the statute, citing, among other authorities, the Tenth Amendment to the Constitution. The Court of Appeals asked for supplemental briefs on the question whether Bond had standing to raise the Tenth Amendment as a ground for invalidating a federal statute in the absence of a State’s participation in the proceedings. In its supplemental brief in the Court of Appeals, the Government took the position that Bond did not have standing. The Court of Appeals agreed. 581 F. 3d 128 (2009). When Bond sought certiorari, the Government advised the Supreme Court that it had changed its position and that, in its view, Bond does have standing.

See Bond v. United States: http://www.law.cornell.edu/supct/pdf/09-1227P.ZO

To understand how Bond impacts Federal drug laws, you must first understand the Single Convention Treaty:
The Single Convention on Narcotic Drugs of 1961 is an international treaty to prohibit production and supply of specific (nominally narcotic) drugs and of drugs with similar effects except under licence for specific purposes, such as medical treatment and research. As noted below, its major effects included updating the Paris Convention of 13 July 1931 to include the vast number of synthetic opioids invented in the intervening 30 years and a mechanism for more easily including new ones.

Earlier treaties had only controlled opium, coca, and derivatives such as morphine, heroin and cocaine. The Single Convention, adopted in 1961, consolidated those treaties and broadened their scope to include cannabis and drugs whose effects are similar to those of the drugs specified. The Commission on Narcotic Drugs and the World Health Organization were empowered to add, remove, and transfer drugs among the treaty's four Schedules of controlled substances. The International Narcotics Control Board was put in charge of administering controls on drug production, international trade, and dispensation. The United Nations Office on Drugs and Crime (UNODC) was delegated the Board's day-to-day work of monitoring the situation in each country and working with national authorities to ensure compliance with the Single Convention. This treaty has since been supplemented by the Convention on Psychotropic Substances, which controls LSD, Ecstasy, and other psychoactive pharmaceuticals, and the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which strengthens provisions against money laundering and other drug-related offenses.

Since the Single Convention is not self-executing, Parties must pass laws to carry out its provisions. The United Nations Office on Drugs and Crime works with countries' legislatures to ensure compliance. As a result, most of the national drug statutes in the UNODC's legal library share a high degree of conformity with the Single Convention and its supplementary treaties, the 1971 Convention on Psychotropic Substances and the 1988 United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Russian Minister of Interior Affairs Boris Gryzlov told the State Duma that "total prohibition" of illicit drug use was "not the government's own initiative...but rather the result of our responsibility to implement the UN drug conventions of 1961, 1971, and 1988." The Single Convention has been extremely influential in standardizing national drug control laws. In particular, the United States' Controlled Substances Act of 1970 and the United Kingdom's Misuse of Drugs Act 1971 were designed to fulfill treaty obligations. Both Acts include analogous schemes of drug Scheduling, along with similar procedures for adding, removing, and transferring drugs among the Schedules. The Controlled Substances Act follows the Single Convention's lead in granting a public health authority a central role in drug Scheduling decisions. It also includes a provision mandating that federal authorities control all drugs of abuse at least as strictly as required by the Single Convention (21 U.S.C. § 811(d)).

--Single Convention on Narcotic Drugs From Wikipedia
http://en.wikipedia.org/wiki/Single_Convention_on_Narcotic_Drugs

The fraudulent authority to outlaw cannabis was created through the covert use of the Single Convention Treaty, for the unlawful purpose of circumventing the requirement for a constitutional amendment, as was the case with alcohol prohibition. For over a century, the courts misconstrued the Necessary and Proper Clause, allowing unconstitutional infringements of the 10th amendment, by wrongly conferring upon the Federal government "unlimited authority" when signing treaties. In their Amicus brief to the Supreme Court in the Bond case, the Cato Institute explained how two related and constitutionally dubious propositions regarding treaty powers of the Federal government were used for a century to undermine the 10th Amendment and to pass domestic legislation in excess of constitutional authority – merely because action was promised in a treaty:

The Treaty Power is Limited by the Constitution. The root of the district court’s error is the broad interpretation that has been given to this Court’s century-old decision in Missouri v. Holland, 252 U.S. 416 (1920), which in the lower courts has come to stand for two related and constitutionally dubious propositions: 1) that the treaty power is not limited to the enumerated powers otherwise delegated to the national government; and 2) that the Necessary and Proper Clause is likewise not limited when utilized in support of the treaty power. See, e.g., United States v. Lue, 134 F.3d 79, 83 (2nd Cir. 1998) (“the United States may make an agreement on any sub- ject suggested by its national interests in relation with other nations”); id., at 84 (“If the Hostage Taking Convention is a valid exercise of the Executive's treaty power, there is little room to dispute that the legislation passed to effectuate the treaty is valid under the Necessary and Proper Clause”); id., at 85 (“the treaty power is not subject to meaningful limitation under the terms of the Tenth Amendment”); United States v. Ferreira, 275 F.3d 1020, 1027-28 (11th Cir. 2001) (agreeing with Lue); see also Nicho- las Quinn Rosenkranz, “Executing the Treaty Power,” 118 Harv. L. Rev. 1867, 1871 n.11 (2005), and cases cited therein. The broad interpretation of Missouri v. Holland results in a sub silentio overruling of prior precedent. In Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 736 (1836), this Court held that be- cause the “government of the United States ... is one of limited powers” and “can exercise authority over no subjects, except those which have been delegated12 to it,” the congressional police power authority over federal territories could not “be enlarged under the treaty-making power.” Missouri v. Holland does not mention that precedent, much less hold that it was being overruled. Moreover, the broad interpretation of Missouri v. Holland has been severely undermined by two sub- sequent decisions of this Court: Reid v. Covert, 354 U.S. 1 (1957), and United States v. Lopez, 514 U.S. 549 (1995). Reid addressed whether, by adopting a statute designed to give effect to a treaty, the federal gov- ernment could avoid the requirements in Article III, Section 2 of the Constitution and in the Fifth and Sixth Amendments that civilians are entitled to in- dictment by grand jury and trial by jury. In a rare reversal of course after a petition for rehearing allowed the Court additional time to consider just how significant a matter of basic constitutional law was at stake, the Court held that the Constitution imposed limits even on the treaty power. “The United States is entirely a creature of the Constitution,” noted Justice Black, writing for the plurality and announcing the judgment of the Court. Reid, 354 U.S., at 5-6 (citing Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119, 136-37 (1866); Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 477 (1939); and Ex parte Quirin, 317 U.S. 1, 25 (1942)). “Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.” Id., at 6 (cit- ing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176- 80 (1803); Territory of Hawaii v. Mankichi, 190 U.S. 13

To the extent that the United States can validly make treaties, the people and the States have delegated their power to the National Government and the Tenth Amendment is no barrier. Id., at 18 and n. 35 (citing, e.g., United States v. Dar- by, 312 U.S. 100, 124-125 (1941)). By citing Darby, however, the Holland Court indicated that it was addressing constitutional limits imposed by the scope of other enumerated powers, not asserting that the people had delegated an unlimited authority to the national government via the Treaty Power. Hence the significance of Lopez. The Reid plurality’s obiter dictum with respect to Holland must be read in light of Lopez and the doctrine of limited, enumerated powers that it confirms. The United States cannot “validly” make a treaty that ignores the structural limits on federal power, any more than it can “validly” make a treaty that ignores the express prohibitions on federal power. See, e.g., Virgin- 18 ia Ratifying Convention (June 18, 1788), in 3 Elliot’s Debates 504 (Gov. Randolph) (“When the Constitution marks out the powers to be exercised by particular departments, I say no innovation can take place [by use of the treaty power]”); id. (June 19, 1788), in 3 Elliot’s Debates 514-15 (Madison) (rejecting the claim that the Treaty Power “is absolute and unlimited,” noting that “[t]he exercise of the power must be consistent with the object of the delegation,” and that “[t]he object of treaties is the regulation of inter- course with foreign nations, and is external”). More to the point for this case, Congress cannot “validly” exceed its enumerated powers by the simple expedient of relying on a treaty rather than Article I. At least, not without altering the limited “nature of the government itself,” Geofroy, 133 U.S., at 267, or removing the liberty-protecting “shield” that the structural parts of the Constitution provides, or acting “manifestly contrary to the objectives of those who created the Constitution, . . . let alone alien to our entire constitutional history and tradition,” or permitting “amendment of [the Constitution] in a manner not sanctioned by Article V.” Reid, 354 U.S., at 17, 33.

The Necessary and Proper Clause Does Not Give Congress Carte Blanche to Pass Domestic Legislation in Excess of Constitutional Authority Merely Because Action Was Promised in a Treaty. Even if the treaty power is itself ultimately held to allow issues to be addressed by the federal government that are not otherwise within the federal government’s constitutional powers, such a holding would not answer the analytically distinct question whether a treaty that is not self-executing could authorize Congress to act in excess of the legislative powers assigned to it. Professor Nicholas Rosenkranz’s recent article in the Harvard Law Review persuasively argues that such a promise in a treaty must be read as a commitment to push for a constitutional amendment that would authorize the promised legislation, not as authorization for Congress to adopt unconstitutional legislation. See Nicholas Quinn Rosenkranz, “Executing the Treaty Power,” 118 Harv. L. Rev. 1867 (2005).

--From BRIEF OF AMICI CURIAE CENTER FOR CONSTITUTIONAL JURISPRUDENCE AND THE CATO INSTITUTE IN SUPPORT OF PETITIONER:
http://www.americanbar.org/content/dam/aba/publishing/preview/publiced_preview_briefs_pdfs_09_10_09_1227_PetitionerAmCuCtrforConstJurisp.authcheckdam.pdf

In conclusion, Bond v. United States upholds individual standing to challenge Federal prosecution, when Federal law relies upon a treaty to overreach its constitutional authority. Just as Bond has standing to challenge whether the Chemical Weapons Convention Implementation Act of 1998 can be used to prosecute her under Federal law, similar arguments could be made in questioning Federal jurisdiction in raiding, arresting and prosecuting California citizens who are complying with state law. The authority and jurisdiction of the Federal government to enforce laws based upon the Single Convention on Narcotic Drugs of 1961 should be challenged by California citizens individually in Federal cannabis prosecutions as well as collectively through a voter initiative which authorizes the state to opt out of the Controlled Substances Act.