call our case for this afternoon united states versus carol an that it makes any malicious use of chemicals serious federal offense in every poisoning eligible for the federal death penalty this is the reading is so broader it wants to read it really is that the language actually  a broad range of activity that includes what your client did well your honor i think it's a bit of both i mean certainly the language of the treaty of the statute rather is broadly written i do think it's amenable of a limited construction that avoids some of the unconstitutional effect on us in the pale opinion we said we stated what the what we understood the prohibition to be said she fell within its that it was clear that wasn't address d by the supreme court what basis do we have for revisiting that now what your honor we're not asking you to revisit any of your prior ruins your prior rulings as i understand it was to reject a constitutional vagueness challenge to a statute and i think there's a considerable disdain for it's between saying that a statute is so vague that it's unconstitutional and saying that it's going to affect the merits that we didn't deal with the last time or not before us exactly and i think particularly given that the constitutional merits are now before you when they weren't before it seems appropriate to consider the possibility of saving construction based on that constitutional issue that wasn't before you in missouri v i'm sorry i thought we had said bonds actions context of rejecting the vagueness chant and so i mean with with respect i mean it's obviously an opinion you joined so you know it's with respect that i suggest that that language has to be read in conjunction with the argument that you were reject and there's nothing inconsistent with saying that her conduct was within that statute for purposes of the statute not being constituted constitutionally day but also saying it's you know it's a broad statute it's not so vague that you're not arguing ambiguity or vagueness to us i'm arguing that the statute is sufficiently ambiguous the savings for option and i think the just to finish the point the ambiguity i think really comes from the word peaceful  the missouri the holland has that one sentence it also says as an issue and the last sentence says the treaty and the statute but you trying to read was reviewed how it is saying well the court said you know women i'm not saying this without qualification there are things here for example birds going across the state of missouri is minor compared to the of making sure that we don't have whole populations killed right but is that what justice holmes meant that there's a balancing or is he just saying just not saying something absolute this is this to me is an easy case but he really didn't get into the balancing kitty well i think he did your honor but let me take it to go to just one you're right to point to that one sentence earlier in the opinion that the government likes to rely on and could be read if read in isolation to admit a kind of bright line rule ever anything goes under the tree that the reason i don't think that's the right way to read that and read the opinion that's as a whole is if you look at the sentence immediately before that what justice holmes for the court is rejecting is the notion that the case can be disposed in favor of the state of missouri simply by reference to the tenth amendment and he says it is not enough simply to refer to the amendment and the reserve powers because there's the treaty power and the rest of that opinion goes on to talk about as you point out the treaty in the statute and it has an analysis at the actually when you look at the list it seems like it's talking almost exclusively about the treaty power as opposed to the statute it's almost like i'm going to tell you about the treaty power and it's not without qualification and if the treaty powers valid then we got this tag along that comes automatically at least the government would say that yeah that's what they'd say and then does it really come automatically is your point saying no it has it also has to comply with the the constitutional restraints that exist either from the tenth amendment or structurally or whatever right exactly and i would say a couple things about that one is mean you know there is a disconnect here between the statute in the convention and i would essentially challenge the government the possession aspect or what there is there is the detail differences between possession being covered in the like but there's also the difference which is i don't think the government is going to come up here and tell you with a straight face that if this prosecution was not brought in certainly not brought by the fed federal government as opposed to the states that we would be in violation of our treaty obligations we would not so there is a big difference between the scope of the statute as the government interprets it in the scope of the treaty would not that's not seeing reason how are you suggest that that necessary means absolutely necessary that that forgoing a prosecution that you can only prosecute somebody you for going a prosecution would put you violation of tre obligation no the reason i'm making this point is to suggest that there has to be a difference for purposes of the constitutional analysis between the treaty and the statute that implements the treaty and the reason is twofold and one reason is because they're not co tensive and as long as there's not coextensive that seems to me to be a strong reason why you need to analyze the statute independently of the treaty the second reason why i think you need to analyze them separately and you can accept this argument that as and one of the reasons it's perfectly valid is because it's not self executing so any of the issues about whether congress properly pass a statute or whether it be the states that in force at a federal government those questions aren't implicated by the treaty itself  only let's say we accepted that for purposes of our history and we that there is a distinction to be made between treaty and the statute and we're looking at the statute to see whether it is in fact something you could is there something in the statute itself that you think is problematic were is or are you really making an ass apply challenge here i mean is that is it i guess i have a little trouble because you see things not of the statute but it the choice to apply the statute to this individual and i think the answer judge george is it's both which is to say we're making both an argument that as applied to my client the statute unconstitutional also making the argument if you're open to it at this stage in the case to say you know even if it first plus the treaty might that statute might seem to go this far if you interpret the word peaceful with some sort of sensitivity to both the nature of the treaty and the constitutional problems that are raised then maybe you wouldn't read statute to reach this far but either way one way or another either because the statute doesn't have to be interpreted to extend this far or because it's simply unconstitutional as applied we think there is that problem with the statute and it really in here is in the statute now that there's anything wrong in the abstract with the united states ratifying the street how that's not where the problem is the problem is either at the moment they passed a statute that necessarily went this far or at the point that it becomes applied in this kind of situation what is your basis for saying it's unconstitutional as applied is it because i mean it's not like there's a first amendment right is it  arguing it's local so therefore it's tenth amendment states rights i mean i don't get the as applied challenge well here let me try to make an argument by analogy if you will as we know in the briefs we think the logic of the government's position would allow the united states to pass a federal murder statute if it emitted to a treaty about the convention for the protection of human rights and i would say that if they if they passed that statute and they have provided in a murder that involved a foreign bassett or or some other determination that if it fits within this category and we have this kind of chemical we're going to risk it we're not going to look at whether the person is an iraqi or the person is i mean what if carolyn bond was a terrorist and then maybe i have a harder as i shall but congress decided in order to accomplish the goal that the use of these weapons was chemical weapons was such that this definition of peaceful was sufficient and the breath of the statute was sufficient why is it unconstitutional as applied to her you're saying that your gut tells you it's maybe not it maybe it's a little broader than  they might have thought but they made it broad so as to encompass things that were arguably with then because maybe she is iraqi and maybe she is you know what they want to encompass that why is it unconstitutional i don't find a principle here well  me say two things again one is that there is the argument that the principles that it's amended is that if you apply it so broadly that it criminalizes every malicious use of poisoning then you've overridden the structural limitations on the government and the division of government and the states the second point though is yet said that about drug you say that about the federal drug crimes to drug crimes are different because the congress at least recognizes that it's pursuant it's proceeding according to the congress power and there's a jurisdictional element and i think that's something different your honor because think of the jones case in the supreme court there the supreme court was confronting a very domestic family arson cousin on cousin arson now what did they use to unanimously say the statu did not apply there they use the jurisdictional element in the sashing that the house wasn't used in interstate commerce with some dangerous about the government's argument here is that because this was passed implement a treaty there's no jurisdictional element whatsoever and in the jurisdictional element if the court doesn't either construe peaceful in a way that limits the breath of the statute or alternatively say it's going to be unconstitutional when it's applied the treaty had had broad i mean verbs in it think it is in effect your argument that the statute centrally to tween especially parents with maybe additional one word the convention however the structure of federal state relations is such that as applied to this person this statute shouldn't apply to a domestic relations dispute yes and there's two ways in which i think the convention really speaks to this directly in the breath of the sacha one is that article seven of the convention when it talks about s states signatory states passing statutes to implement as he says in accordance with their constitutional processes and there's no reason why the pennsylvania laws that are already on the books and make this conduct terminal are not sufficient to discharge our treaty is all of those other federal statutes you're talking about with very few exceptions have some kind of jurisdictional element and they may be relatively easy to satisfy but that's not just a trivial matter if they show that there are some particular that are all nexus and that's not the case here in leicester going to say that it's a sufficient federal nexus that there was a malicious use of a chemical but that seems very far removed from what the convention is directed at it is a chemical weapons convention it is not a convention to prohibit any malicious  vaughn would be able to get her hands on and it seems does it i mean it doesn't have the feel that you're trying to get out of oh my gosh every covered in america is covered by this thing we're talking about some pretty specific really really bad chemicals that she deployed right well with respect your honor the potassium backpack chromate is something that you can still get every day if you just go into the internet it's about ten ninety nine for  misfit here because nobody is trying to prohibit the commerce in these items and what converts this into something makes it in of this otherwise freely available article of commerce a chemical weapon it's the interstate formed intent to use it a malicious way statute just doesn't have to be read that way i mean you know in this context of an international treaty where the other provision of the convention that's relevant is article eight that says the whole reason states are supposed to implement statutes is to make criminal to an terrorism overlay which is exactly what attorney general reno told congress they were passing i mean the idea that congress actually consciously thought that it wanted to criminalize conduct like that and i think that's very nice for julie there's nothing in the record they were told by tourn general reno that this was something to deal with terrorists and the like they were not told this was something that we federalize a whole swath of ordinary garden variety what you can effect your limiting principle but the argument you're making to us is if you don't put someone in on this it has to be unconstitutional the statute that's how i understand you be saying as applied here yes well and and if it's  understood you to be making to argue it's one it's bad as applying to her but i thought you told me you were also making the assertion that without someone in principle it's up it's going to be all right i think you're i take your point the constitutional might just for her but for any anything other than what you call a stain on state terrorism is that i would say the question you asked is that i could be undertaken by a nation state or a signatory and that's it nation states or could it could be some individual act or something i mean how would we frame how would we frame the limitation that you think we ought to read into this and and have we not us just legislate from the bench and overriding wh congress actually wrote i think what i would invite you to do is is focus on the word peaceful say that in the context of a statute designed to prohibit conduct that would be illegal if undertaken by nation state it peaceful obviously in contradistinction to warlike but note thirty six which talks about the biological weapons statute and it talks about in trust state use being prohibited and you look at that's not you know it's really quite like the statute we have here into twenty nine how they can i mean i agree your honor i mean it's a throwaway but i don't know but i'll take that and i'll run with that because here's the thing i mean there are three statutes in that footnote if i recall correctly in the other two i think are quite different plastic explosives very different nuclear material very different those are things that sort of self evidently have a federal nexus you know i think the biological weapons provision is exactly the same which is to say i think it's amenable of a saving construction but when i went and picked up that statute read it it struck me that if you read it the same way the government is reading the chemical weapons treaty here that if i spit on you when i had a poll and i did to give you a poll that i just violated the biological weapons treat that's crazy but that's if i read it that's the parallelism here you know it's but the question is who who then alters that congress when they're told that this is crazy or do we draw exceptions out of it because it's crazy i mean i think that the statutes both statutes frankly are amenable of the savings right on the other hand if the court wants to say it's unconstitutional as applied and get congress attention in that way to amend it that would be fine too but you know i mean the only other thing is  you know in congress if you focus on this problem can certainly fix the problem and write a better statute the government wants to rely on cases about the hostage taking statute and that's a great illustration because there's provisions in there that make clear that something's an international incident and an ordinary domestic kidnapping and one thing there what do you rely on from ferrara case what makes those dramatically different from what we're dealing with here exactly what i just talked about i had you know  think is our case because if you look at judge walker's opinion for the second circuit lou what he does is he reads he reads missouri against holland exactly as we're suggesting he says there is a there are support in that opinion for the idea of a balancing test and there has to be an important national or international objective or purpose or interested in that he says but we don't have that problem here but why don't you have that problem in the hostage taking context because there's a jurisdictional element there that says that if the kidnapping applies domestically it's only covered by the if if you know my client had locked out this other woman and put her in the closet you know would that be a false arrest under pennsylvania law you bet with that the kidnapping of the pennsylvania law probably would be a violation of the international hostage her statute no because there's a sensible construction that statute that's right on its face now you know look i'm not going to tell you that i'm not asking you at some level to do congress's work for you here i am but i think that the canon of constitutional avoidance gives you  of doing will you be making the same argument or will you be making in effect the argument that missouri made back in one nine hundred twenty that you if you can't do what the statute as a tag along to a court overruled sprint or case unless it's absolutely necessary and it strikes me that it's not i mean you know i'll be perfectly candid that you know i'd sort of understood that ms are against holland stood for this kind of bumper sticker proposition that congress can do whatever it wants into the pretty clause because that's the way i think that that's you know the shorthand for that case but i think if you actually read the case it's a much more sensible case if i'm in for what it's worth i think if you think it means i'm going to have a problem with the cases it's a typical justice holmes it's scripted lot of those cases four to five now why did he get six colleagues to join it i think because it wasn't this radical far extension of disrespecting states rights i think it was a narrow as applied decision that folks that a balancing test for the balance went all in favor of the different position than when you're in one of those now well well i guess you are i have in some ways no control over that answer as i'm sure you're aware well but what are you're leading with your commerce clause arguing are you saying to us that's your best argument your honor i think that is the easiest argument for the court to address simply for the reason that we have a supreme court case that is on point that is very recent as opposed to a supreme court case that is right on point that is very old we have a supreme court case that is on point that is very clear as opposed to one that is on point that is written by justice holmes gonzales for straights case when you're talking about trafficking in chemicals and so to now time for this to what is clearly an economic activity drug trafficking is just a really painful stretch i comply i completely disagree he and here's why it's different from marijuana i agree with that because in the case of marijuana it's easy congress made the decision that it was useless and it wanted to eradicate it as raich opinion makes clear but marijuana is simply one component of a larger regulatory scheme which is in large measure why the supreme court found the regulation appropriate and makes that clear and his rage also makes clear in the case of the vast it's all about money vast majority of drugs it's all about money but to twenty nine doesn't require proof that the chemical weapon moved interstate commerce but nor does nor does the drug control act in there and indeed the race case you're talking about marijuana that let me let me get my thought out just because it's the parallel is actually very very close what the drug control act does as rage makes clear it deals with a situation where many drugs such as for example cocaine have illicit uses and listen to uses and it regulates those by in the case of marijuana saying it will be stamped out but in the case of cocaine saying most uses are prohibited but it may be prescribe in limited circumstances is your very very early turning this argument a consequence visited tacit admission that if you don't have a jurisdictional hook of the necessary proper you're trouble no no you're on i well necessary and proper is implicated in both but i think there are two alternate i think there are two alternate theories as i said one of them is and they both are from the perspective of this court governed by the supreme court in one case though we're dealing with a very recent precedent which tells us that when you're dealing with a commodity which chemicals are unquestionably commodities the end and when you look at the convention that we're dealing with it makes clear that what the international community and what congress was concerned about was a complicated was regulating commerce and nickel absolutely because it was dealing with with multiple problems at the same time was and wasn't on just pretty clearly saying hey we don't like hammack a weapons not look out for look out for the the pints all that's got ammonia in it that's the injuries thing actually are  what they were saying was chemicals have two sides to them in the same way that cocaine does some is good and some is bad and in order to get the benefits for all mankind that  e from international trade in chemicals from scientific research in chemicals from the free flow of information across state boundaries and across national weapons and make that across the spectrum rich poor etc in here you're talking about as the government itself said when this was passed this is dealing with the terrorism war like activity  it's dealing with numerous things and indeed if you look at the message that the state department sent to the senate when this was proposed for ratification explained that one of the one of the primary concerns was the promotion of international trade in chemicals and the only way to accomplish that the fear is that if countries and companies are concerned that their chemicals like from the well but you made it you made a calculated decision not to do it for probably some very good reasons that it has it's a lot of use the same deal world has a lot of hair on it that the say that this fit you've said that you believe that the stands up just fine under what you had argued before and i guess i'm interested in knowing what your response is to mr mintz argument that there's got to be a limit principle on this that it can't just be accepted that this is necessary and proper to implement the treaty otherwise we're going to be getting into federalism problems with the response there are two responses the first response is of course there are checks there are the affirmative checks in the constitution that appl every statute whether passed its president to a treaty power or any other power congress cannot pass on well i guess it can pass them but an unconstitutional law cannot survive and whether that law is in violation of an affirmative obligation or a structural limitation of the constitution whether it's passed pursuant to treaty power or any other power so are you accepting the meek the amicus is argument here that that the treaty power is one thing and the president is free to say sure we'll we'll and act this treaty and that it's a completely different thing to look at the statute in that  the president could constitutionally say i'm going to bind the country to something which in fact congress can't do and those those two things are utterly different i mean you have misread the amicus argument but that's part of what i understood and be saying is that what you're saying no that's that's not what i'm saying that the cases make clear that this court has a role in reviewing the const the treaties but that role is is extremely limited and indeed if you would could you address mr clements structure argument that is that even if the language of this that treaty and then the statute that follows it now tracked reasonably well is it necessary and proper to invade the province of the states with respect to what is in effect it domestic violence crime or or murder attempted murder well you are  b the short answer is yes because the treaty itself makes the possession of this substance or or the the acquisition stockpiling and use of this substance and the statute tracks one of them over the internet that's true so anybody who gets this over the internet is in violation of federal law no if if used for a purpose inconsistent with the statute peaceful purpose or if he is for  to someone like me is a no is clearly a play it applies to her there is no question about that this court said so in reading the plain language congress said so repeatedly in writing the statute and indeed there's a provision of the statute the demonstrates that fact it did we say so are we free to go back on this i mean that was my opening question is what have we already use focus on this and can't really walk away from it are we free to revisit a the you've got two questions in there your honor and the answer to the first question is yes and the answer to the second question is yes but did we not rule based just on vagueness as compared to reading it so as not to run afoul of the intent if you will is mr clement marriage i mean the answer is that you said what you said in the context believe vagueness challenge right but you said what you set and what you said was bonds actions thus clearly constituted unlawful possession and use of a chemical weapon under section two twenty nine you also said there was no doubt that bonds conduct violated section excuse me no doubt that a quote person of reasonable intelligence would know that her conduct while let's actually it's a twenty nine is sort of a tale of two arguments because we haven't even mentioned as a review how i'm with you could you how could the government have own are you asking me whether there is some power other than the commerce power and other than the treaty power that would support it yes standing here i can't think of one that doesn't mean that that doesn't mean that there isn't one but i and  let's assume the scope as to the treaty power in missouri be holland there was no mention of an eighteen thirty six k smear of new orleans which which appeared to say the congress is limited powers can cannot be enlarged by the treaty power there's no way and i mean if the court was over ruling here of new orleans it didn't mention it  although i guess what i don't know that there's an inconsistency because the treaty power is a separate power and that power is right that power itself is not  enlarging a power it simply it is a power in the same way that the commerce power is a power and it allows you to pass a really can you read me or morals that way i mean that's the language of it seems that he just congress is guts are fine powers and you don't get them expand those powers by this this war the treaty right i don't know that it's it's i don't know that it's an least that that i have is that a treaty cannot take away your constitutional rights under the bill of rights if that's the case there is this persons had rights under the bill of rights that the treaty cannot take away can a treaty then add to the powers given to the federal government the numerated powers i don't view it as i don't view it as add and add and subtract your honor i view it as the treaty power is a delegated power like every other but and but it's an example or you know it's article two section two the treaty power and now we're getting into that the dichotomy when he becomes that zain what congress can you can't do that doesn't new power or jurisdiction on the congress of the united states suddenly start regulating things which otherwise would not have the power to that's that's again i don't want to say i fully understand all the organs from it that's what i understand them to be saying what's what's wrong with that argument particularly in light of the mayor of new orleans  the way the way i understand missouri holland and all the cases including lo and ferrara and lara and all the others that have relied on it since the way i make sense of it is there really are two questions that get asked with regard to the constitutionality of any statute the first is did congress have a power some power to pass it  and then the second is is it constitutional and those are those are different game cory's and there's something to be understood from this comment that the treaty in missouri versus holland didn't contravene about some invisible radiation from the tenth amendment hard to know whether he's saying that sort cassy who he really meant maybe there is some in the nation's number as used by somebody else in another context but is it is it fair to tell to look at the serene versus hollande as not sweeping so broadly as to say anything that congress could possibly do life that treaty is ok well i guess we haven't ever we had no court has ever come across one so i mean the easy answer is yes you can say that so far it's never happened  and it's important to understand why because so far you have been we have been talking about treaties being made by the president but of course that isn't really how it happens and there are structural limitations important structural limitations that go into the making of treaties which is at which is of course that the president has to negotiate it and then the senate has to approve it by two  thirds and that's a as as current events tell us an extraordinarily difficult accomplishment and then if you add into it the requirement that a statute be passed now you've got both houses of congress and the president all over again  and you can imagine that the framers may very well have thought and our experience has taught us in two hundred years that the with those kinds of limitations with the kinds of representation of all the  an international ask ins that i see the treaty and there's nothing like that there doesn't because it need not be a jurisdictional hook anymore than there is in the drug context any more than there is in the biological weapons statute context jurisdictional hooks can be helpful in the case of a commerce clause but are not we know necessary but in the case of a treaty the question is what are we dealing well we've got we've got lopez which says you don't federalize what is only local under the commerce clause you selling you're in effect saying good while you don't lopez lopez is a little bit more nuanced than that because lopez says you don't federalize what is local except in the context of a commercial of a regulation of a commercial environment and warm how about more some more  they said that that principle the supreme court said that that principle was was never addressed and never challenged the concept the underlying concept of the commerce clause and we're we're back to it i mean i know you steer me away from that for we're back there i'm sorry as the underlying concept of the commerce clause is economic regulation and there is nothing more economic than the international trade in chemicals and congress not only could have but as the preamble to the to the convention makes clear did in fact decide that the way to promote international trade in chemicals and knowledge of chemicals was to prohibit to prohibit weapons yes to prohibit the to prohibit the use of them as chemicals the idea was certain chemicals are extremely useful and also extremely dangerous like potassium dichotomy so if you have a chemical that is useful in photography and you want readily available but also is extremely dangerous but but but your concern is i wanted available i wanted to travel across international boundaries i want to be available for scientific research i want difference between saying congress had the power to do it under the commerce clause and it is easily justified under the commerce clause and saying that congress thought it was doing it under the commerce clause and i am i am not standing here saying that in fact what i'm telling you is that we told you before congress didn't think it was doing it under the commerce clause it clearly didn't nobody thought it was but the fact that it didn't think it was exercising its commerce power doesn't mean that it wasn't is the kind of uncomfortable thing to see even though nobody in the process and thought that this was a bas knows you know what it what i did know what i did say was what i remember that the preamble and the end the statements all the way along make clear that one of the motivating purposes was international trade what i said was congress thought it it mean it's pretty clear to me now that congress thought it was exercising its treaty power that's but the question of what cause what power congress thought it was exercising has never been determined of or even particularly significant because this court remember is sitting in judgment on the actions of two other branches of government and the question is not what power congress fought it was exercising the question is did it have the power if it almost sounds as if what you're saying is that if this case goes back up and as i noted it's likely to do so that we the government are on pretty thin ground with respect to the treaty power and missouri v holland and we better darn well come up with another argument even though we didn't make that argument before because we didn't think it was a very good argument constitution from my view my view of the treaty power is that this court is bound by missouri holland and that that exactly as i said the last time i was this court has no discretion about the application of missouri v holland to the facts of this case but we do have a way that we have the the ability to interpret missouri to holland and your opposing coun has given a plausible interpretation and you obviously can disagree with it your honor i agree that the case that that in lieu they said there are words that you could read as balancing and there are other arguments such as made by the amicus professor rosencrantz that argues that missouri b holland is actually misunderstood there are academic arguments that say lots of things here are i there is no case that has that has in fact apply missouri v holland as a balancing act what what he cites as his best his best shot is a case saying we don't we don't have to reach it it we don't have to reach it it would be an interesting it would be an interesting question if we did if that's if that's as good as it gets my argument to this not maybe that what you're posing comes a plea believes is as good as it gets before us but if you go back up to the supreme court missouri holland is back in full play right it's certainly the supreme court unlike this clear if you read that sentence in conjunction with the motion to dismiss that was filed because the motion to dismiss right out of the box cites morrison and cites lopez and says this is not valid commerce legislation and then in response to that and page seven that this commerce clause is right absolutely and you know there is there are consequences in a sense of the concession that congress wasn't thinking about the commerce clause when it passed this legislation it was it would have passed a very different statute i mean if you think about the statute what became criminal here was not purchasing potassium dichroic me from amazon dot com it was the point at which possession or use became combined with the intent to use it maliciously that's when the chemical became converted into a chemical weapon and so it's not the converse the triggers anything i mean my friend on the other side talks about in international trade in in chemicals if that's what a statute to regulate that i won't be here because for one thing the foreign commerce clause gives ample authority to do that but there's nothing that gives the government the authority to federalize crime without any kind of jurisdictional element and i'd it would have been without consequences because it would have given me textual language to hook a limiting construction on and i also don't think that's what they would have done if they would have focused on that maybe they would have thrown in the transmission in terstate commerce to give the commerce work but then if they really focused on that i'm not sure they would have just said maliciously i think they might have used other language that narrow the scope of the century but any of that the reason that language is missing is because congress as as as my friend concedes had no conception there regulating commerce they're trying to implement a statute in the absence that jurisdictional element i think really is extraordinary but he talks about the provision in ration that didn't have a jurisdictional element but the supreme court told you why that was ok which is every other aspect of commerce in this particular substance is forbidden so congress at that point doesn't care whether it's it's traveled interstate commerce it's trying to obliterate it from interstate commerce and that of course is a complete misfit i mean you know given what we know about the treaty senate approves the treaty congress approves the legislation that implements the treaty prosecutions occur under that statute i'm still t get at the basis for saying that a given prosecution is on constitutional i e that this is unconstitutional as applied to your client this is not a first amendment case this is not another case where she has some constitutional right to be free of this federal prosecution what is it that makes this prosecution of her under what is clearly and acted pursuant to the treaty power unconstitutional well i think she does have a right to be free from prosecution under a statute the congress has no authority to pass as it applies to her conduct i  clearly had the power to enact this statute as it is what is it that says as to any given prosecution under a statute that we second guess and basically congress said this but you know what we don't think it really meant it so as applied as applied to her it's unconstitutional i don't i don't know congress didn't have the power to pass this statute and apply to her how do you say it doesn't have the power with respect it doesn't follow the form of the treaty there are none technical difference is that in our included in this case including reaching possession of that really doesn't tension acquisition use you i'm sorry use of for example is covered in both the apple absolutely some things are but then again the conventions used it but the convention is directed at x that would be criminal by state and the convention says that you passed statutes consistent with your constitutional processes and what we're saying is that congress to the extent it passed a broad statute that reaches this conduct acted inconsistently with its constitutional processes are quick and you can't get any cover from the convention can that i don't think you could anyways but especially a convention that says but do this consistently constitutional process we don't do that we don't look at the the person and the specific crime and parse it out in that way we look at whether the statute was passed pursuant to the treaty and if it was and it was proper and there's a prosecution under it who are we to say that this is even though it clearly fits within the language that it's not within their power i just can't hear well i'm sorry your honor i must be being an articulate its i mean you know congress if congress and the way the government interprets this is not a chemical weapon statute it is a criminal use of chemicals  if congress tried to pass a criminal use of chemicals statute under the treaty and necessary in power clauses it would lack the authority to do and that is our submission and i think it's right because if congress absent the treaty would have tried to say we're going to we're going to make it unlawful across this country to use chemicals in a criminal act i don't think they have the power to do that under the enumerated powers if they tried to make every murder involving poison a federal murder i think they would lack the authority to do that and the reason is because you look at those they not this case we have an international situation involving the use of chemical weapons and a treaty that's clearly within know i you know you poison your significant other in the in the privacy of your own home we've just violated a federal statute and if you do it in a state that doesn't have a death penalty you have just been subjected to the federal death penalty i don't think congress can do that and i don't think natural persons be prohibited from doing anything that this signatory states right now like i'm sure saying the same thing it's but that's all it's not that private parties are prohibited from using chemicals at all or using chemically chemicals criminally the individuals are prohibited from doing something that would be unlawful if undertaken by nation state well certainly and i don't know why a nation state would be really upset with  confines of the treaty right well i mean you just assume the way my best starting it which is to say states don't do that well states might want us in that we don't you know that is your best argument and here's where it gets down to a problem for us you want to draw well i do have something responsive on that which is congress has already drawn that one and they've drawn it for purposes of determining whether or not a violation of two twenty nine is a crime of terrorism and purposes of defining what a crime of terrorism is they say th conduct that's not a crime of terrorism would be a crime for terrorism if you're basically undertaking the conduct to influence government action and so that's not a line you would have to just make up you could just basically impose that line and whatever distinction i  think that admits of itself rather readily is your nation states use chemicals indiscriminately you know the concern of this statute is that you're going to you know drop chemicals on a civilian population indiscriminately states don't single out somebody because  they got pregnant with their husband for the use of chemicals and i think if you respected that basic difference you could take a sleep it's only mass use weapons you don't you don't concede there could be something that fell right it's both it's it's both and and don't think motivation is an odd fit for the statute because what makes a chemical a chemical weapons is if it's for an intent to use for a purpose other than permitted by the statute so the statutes all about intent if i c by sending him something in the mail no it didn't get it out of state got it in state what that would two twenty two twenty nine would apply but you're saying it would be unconstitutional to as applied to this particular the fund i don't think so your honor because i think there are certain chemicals and i think anthrax is one i think serin gas with the another there are certain chemicals of either nature you can't target i mean they they have the same basic characteristic that and i don't there's certainly nothing about this case that suggests that's right since you know this my my client of other things was a very nice didn't draw that distinction well i think they may have in the words peaceful and distinguishing peaceful in this context which means non war like again you know i am not telling you that it's there just leaping out in the statute what i'm saying is just like the biological weapons provision could be interpreted to cover spitting with a cold well as your hope that's not it what if your example you could find a way to have potassium die chromate put in multiple places very quickly and hurt many people in the population would that fit under the statute sure but then it would be multiple victims indiscriminate and there be a sense in which that chemical was weaponized and you know me that's one way of thinking about this is you know if this is a statute about chemical weapons it's a it's or it's a cap a statute about chemicals and it seems to me to convert chemicals into chemical weapons you know something more than just a clear somebody who's who's a you know incompetent mentally but knows enough about potassium by chromate to put it on the subway it gets it in new york and puts it on subways in new york city and a number of people are injured or killed yeah i think that would be covered but that's because nothing different there she's feared on th a but there is something different it's the intent and again this is satch it's all about intent and it's an intent to use chemicals in precisely the way that the framers of the convention and statute are worried about which is the indiscriminate use of chemicals to injure people and that's the kind of stuff that not only have nation states done but that's the concern of the statute the concern of the statutes just not every time somebody gets really hacked off at their husband and starts poisoning their food that's not that's not an international incident and i again it's scalia was incredulous about whether you can really mend the constitution with the senate and zimbabwe and i mean the government is i think rightly worried about an aggressive reading these are against al and the last thing i'll say is you know my client has no hope to the amicus and i and i also other academics including mr eastman have said that in light of read in light of what we can glean from lopez it one can argue that missouri b holland isn't as absolute for getting the balance of the us for the moment isn't as absolute as the government argues isn't as it doesn't straitjacket you what is your response to that i would say that's right now i would add two other cases to the mix one is meddling which i think by drawing the distinction between the treaty which can be non self executing and the implementing legislation informs this and the other case is united states or bond against states in the supreme court the once you have a world where the supreme court recognizes that the tenth amendment is primarily about protecting individual liberty and in cases like prince and new york against united states the supreme court recognizes that you know the tenth amendment is the vehicle where you can make an argument that an act of congress is not necessary and proper and intrudes too far in a direction that interferes with individual liberty once you can understand all that then i don't think you need to get the balancing test or over rule miss or against holland i think you can just say look missouri against holland basically says that in a particular context you don't interpret the treaty power to to interpret a treaty or consist of the constitution as understood there there was no sort of you know a real kind of independent tenth amendment claim there there was really nothing there was just states proprietary interest in birds and now you add all the cases you talked about where the court has recognized that there are real structural limits i think that's a way you can harmonize missouri against holland with mayor of new orleans and the subsequent cases and say look you know nobody's really said it was are against holland doesn't say that you absolutely can do something in the face of something pushing back in the constitution that you can't otherwise do because there there was really nothing significant pushing back because the state's interest was so weak so i think you know it's a little bit back to the balanc back what what are we to make of the statements in reagan in missouri that say in effect the tenth amendment really doesn't have anything to say about this