http://reason.com/archives/2013/11/06/the-10th-amendment-is-not-a-treaty-viola
On its face, this statute authorizes federal intervention in any case involving malicious use of chemicals, no matter how local, ordinary, or trivial. But what authorizes the statute? According to the Justice Department, the Chemical Weapons Convention does.
In other words, instead of going through the arduous process of amending the Constitution, the president and the Senate can expand the federal government's powers by agreeing to treaties. If the power to regulate interstate commerce cannot be stretched to accommodate a federal ban on possessing guns near schools or a mandate requiring everyone to buy government-approved medical coverage, a treaty dealing with firearms or health care will do the trick.
This broad view of the treaty power has dire implications for federalism. It suggests that Congress could cite international agreements as an excuse to override state decisions in areas such as drug policy, family law, and medical regulation. In fact, any state law would be subject to a federal veto if it arguably conflicted with the aims of a treaty.
The Justice Department concedes that "the Treaty Power would not permit Congress to breach prohibitory words applicable to all exercises of federal power." That means a treaty cannot authorize the federal government to violate the First Amendment by banning hate speech, the Second Amendment by confiscating handguns, or the Fifth Amendment by allowing punishment without due process. But somehow a treaty can authorize the federal government to violate the 10th Amendment by usurping powers "reserved to the states."
On its face, this statute authorizes federal intervention in any case involving malicious use of chemicals, no matter how local, ordinary, or trivial. But what authorizes the statute? According to the Justice Department, the Chemical Weapons Convention does.
In other words, instead of going through the arduous process of amending the Constitution, the president and the Senate can expand the federal government's powers by agreeing to treaties. If the power to regulate interstate commerce cannot be stretched to accommodate a federal ban on possessing guns near schools or a mandate requiring everyone to buy government-approved medical coverage, a treaty dealing with firearms or health care will do the trick.
This broad view of the treaty power has dire implications for federalism. It suggests that Congress could cite international agreements as an excuse to override state decisions in areas such as drug policy, family law, and medical regulation. In fact, any state law would be subject to a federal veto if it arguably conflicted with the aims of a treaty.
The Justice Department concedes that "the Treaty Power would not permit Congress to breach prohibitory words applicable to all exercises of federal power." That means a treaty cannot authorize the federal government to violate the First Amendment by banning hate speech, the Second Amendment by confiscating handguns, or the Fifth Amendment by allowing punishment without due process. But somehow a treaty can authorize the federal government to violate the 10th Amendment by usurping powers "reserved to the states."
