you'll hear argument first this morning in case twelve one five eight bond versus united states mr clemente mr chief justice in may it please the court if the statute at issue here really does reach every malicious use of chemicals anywhere in the nation as the government insists then it clearly exceeds congress is limited in a numerated powers this court's cases have made clear that it is a bedrock principle of our federalist system that congress lacks a general police power to criminal conduct without regard to a jurisdictional element or some nexus to a matter of distinctly federal concern the president's negotiation and the senate's ratification of a treaty with a foreign nation does not change that bedrock principle of our nothing well justice ginsburg i guess i would quarrel with your premise which is it is true that the convention in the statute used similar terms in terminology but there's one very important difference between the convention and the statute and that actually differentiates this case from missouri against holland and that difference is that the convention itself doesn't directly regulate individual conduct at all and so all the mentioned that the convention tells the state parties go regulate individual conduct in exactly the way that this convention regulates state parties and then what the legislation does is as justice ginsberg said just mirror the convention as the convention contemplated we're just going to be quite precise that what the convention says in this is article seven section one thirty three of the blue brief appendix what it says is that each nation state signs the convention agrees cordon its with its constitutional processes to pass penal was that make unlawful for individuals conduct that would violate the convention if undertaken by nation state and i would respectfully suggest that making that translation if you will between what violates the convention if you're a nation state and what would violate would be comparable individual conduct is not obvious and when the government does that through penal legislation there's no reason why that penal legislation shouldn't have to comply as we promised  it would be deeply ironic that we have expended 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 but putting aside the impact that we could have on foreign relations why is it if it's ok to regularly the possession of marijuana a purely local crime why is it unconstitutional to regularly the use of something that can kill and one name of another human being a chemical that can kill hand and lopez on the other which is this court has held that it is a classic and rational way to regulate commerce to basically prohibit certain items from commons so in isn't the same there's no dispute that these chemicals were transport against along interstate lines well and i think that's not even disputed in this case but i don't think it was really disputed in lopez the firearm would have had to crossed state lines but the problem in lopez was the federal statute but as we took the case the issue was whether the treaty supported the laws that's right justice scalia and we do think that the government like a private party can wave a constitutional argument on the other hand i would say that one up to really concerned about the commerce clause argument because we think the commerce clause argument has the same basic effect as the treaty power argument you think mr police do you think mr comment and this goes back to justice ginsburg's question could the could there could this treaty have itself regulated individual conduct could the treaty have been self executing well i think that's an interesting question and i don't think the court needs to answer it i mean i would take the position that if they're really worth self executing treaty the tried to impose criminal prohibitions and i don't think there is any treaty like that but if there were one i would say here that it violates the constitution for the same basic reasons that this implementing legislation does but i think where would you find that in the constitution because there's clearly a treaty power that does not have subject matter limitations and indeed if you go back to the founding history it's very clear that they thought about all kinds of subject matter limitations and james madison and others decided quite self consciously not to impose them so where would you find that limitation in the constitution i would find that limitation in the structural provisions of the constitution and the numerated powers of congress and i would say that would be very isn't a new braided power the enumerated power is the treaty power so you have to find a constraint on the treaty our where does that come from well i think that where we come from again is the structural provisions of the constitution if we had a self executing treaty that purported at a national level to commandeer state and local police officers i would think that there might be you could call it a tenth amendment objection you could call it a numerated power objection there might be an objection to that treaty or don't you think the word tr some meaning it 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 the objectives of the constitution was to deal with the treaty power was to deal with the issue of debts owed to british creditors and there have been cases about the property rights of foreign subjects about the treatment of foreign subjects here about things are moving across international borders about extradition all of those but in all of those until fairly recently only until generally after world war two all of those concerned matters that are a legitimate concern of a foreign state that was the purpose of the treaty so can't we see something in that in the meaning of a treaty what it was understood to mean when the constitution was adopted i think that's right justice alito and i didn't mean any answer justice kagan squashed into it fully accept the premise that there's no limit on the treaty power whatsoever but i do think that it's important to recognize that in the context of non self executing treaties there's a real opportunity to leave for another day the question of whether the treaty itself is valid because sometimes a treaty is non self executing precisely because the senate recognizes if you had been the president's counsel would you have advised him that it was unconstitutional to sign this treaty as written no absolutely not justice kennedy but that's precisely because it's a valid non self executing treaty by its terms it doesn't do anything to direct directly regulate individual conduct and if i were the president's counsel i would have said honestly mr president i don't think this requires us to have any law that applies to garden variety assaults with chemicals but if we need that discharge or treaty obligations the states are absolutely ready and able to shoulder that task there's no state in this country that doesn't have a general assault statute that would be covered by this conduct there's no state that doesn't have a murder scene that you think americans an irony in what you just said because government says that that exercise of prosecutorial discretion put us in violation of our treaty obligations our treaty obligation at most is to have a law that prohibits this conduct which the states certainly do the treaty obligation is not to make sure that every single use malicious use of chemicals is in fact prosecuted by the state or local officials mr comment can i make sure i understand your test your test is to say that with respect to every prosecution under this under this treaty that a co has to ask whether the prosecution has a sufficient nexus to national or international concerns is that is that your test no that's not my test justice kagan i would actually come at it from the other end of the stick which is to say that the one thing i think i know from th court's precedent is that the federal government doesn't have a general police power so as i look at this statute it can either be saved by essentially creating a jurisdictional element out of the phrase peaceful and equating it with non war like or th really has this general character that at least as applied to the chemicals here which are pure dual use chemicals it can't be constitutionally apply well i guess i'm still looking for a test and i thought that the test that i just articulated was really directly out of your briefs but if it's if if if you're suggesting that that's not the test give me the test that we're supposed to ask with respect to this case or any other as to whether the prosecution is unconstitutional it's whether the federal statute exercises the general police and if it does that sounds like a facial challenge now i thought that you made very careful to talk about that this was an ass applied challenge to this particular prosecution well that's because the only relief i'm seeking is to have my client's conviction vacated so this is the classic as applied challenge now the reasoning that the court may employ in vindicating my as wide challenge may suggest that the statute is unconstitutional in some or all of different applications but our claim is our it's been so you're saying if the statute extends to things that we've generally thought of as part of the police power that's sufficient i would say that if a federal statu exercises police power by which i mean it criminalizes conduct without regard to jurisdictional element or some nexus to a matter of stinky federal concern then that statute exceeds congress power that was the case in lopez that was the case morrison and i think convention except it relates only to sarin gas and and there's a chemist out there and you know the implementing legislation mirrors the convention it's a chemist out there who manufactures sarin gas i take it's pretty easy to manufacture and sends it through the duct of the house and kills everybody and it does that have a nexus to national concerns it does your honor and it would be valid legislation precisely because  something that clearly congress could prohibit no it's uses and that's i understand how the statute applies to serin gas or other things certainly on schedule one there's some schedule one substance is that are talked about both in the convention in the treaty those things are  is particularly unusual but the statutes application to something like potassium by chromate or vinegar or whatever you have is that in most of its possession and uses it's perfectly lawful and what makes it a chemical weapon in the government's theory is when it's used purely intrastate in a malicious way so that this is in my hypothetical and you didn't run away from it at all i applaud that in my hypothetical it's a completely domestic broadly and i guess what i want to know is you are imagining a world in which judges day to day try to get inside the head of treating makers to think about you know in this case we understand that there's a national interest in regulating sarin gas but we don't think that there's a sufficient national interest in regulating some other chemical or some other chemical or so on down the line it seems to me a completely indeterminant task and one that would have judges take the place of treating makers in terms of deciding what is in the national and international interest well justice kagan i would beg to differ i actually think that our approach to this case avoids judges being put in that difficult position precisely because we distinguish unlike government between the validity of the convention in the validity of the implementing legislation and then as to the implementing legislation we simply ask the courts to do what they do in every other context which is to check and see if that implementing legislation is consistent with our basic chartering document it's the government's position which i don't really understand why this would work but their theory is that if the non self executing treaty is valid then the implementing legislation is ipso facto somehow what you think about the convention that was before this court in the middle east the vienna convention of consular notification puts an obligation on any arresting official to provide notification to the consulate about arrested for national now i suppose  would be a perfectly rational way to implement that convention to have a national police force and so every arresting officer is a federal officer who is fully apprised of the vienna convention responsibilities they would be a rational way to implement the treaty but it would be remotely consistent with our constitution on the other hand that same valid non self executing treaty can be validly implemented by chartering the state department to work with police officers on a state and local level to understand their obligations you think it would be difficult for a 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's involved in this case justice alito i think that would be one way of approaching the question i think that would be amended i would even beyond that that would be the beyond the ability of federal judges when they when a case like this comes before them i don't think would be  beyond their ability i also don't think it would be of the beyond the ability of a federal judge to say ok let's hypothetically ask the question in the absence of a non self executing treaty would congress have the power to pass the statute and if the answer to that is no then i think the burden sort of shift to figure out why it is that the treaty adds something to the powers of the federal government and i think this just to make clear i think this is a very different context from what the court had in missouri against holland because they're the treaty itself prohibited individual action an individual violated the treaty if they took a migratory bird out of season and so in that sense the enforcement statute did nothing more than put a criminal penalty i'm violating conduct that was already prohibited to the individual is and then in concert one way to characterize your argument or is it to unfairly confine to your argument to say that what you're suggesting is something like a clear statement rule but if the treaty intends nation states to have their own constitutional structure superceded at a minimum that has to say so and then we will come to the question with they can do i think will be a fair characterization of our argument but only to add that this would be the anti clear state t case because the one place that this convention talks about imposing obligations on individuals it's a promise by the nation state to paskin a legislation that is in accordance with their constitutional systems so it's very bizarre that's article seven section one it's i think thirty three a day it's very bizarre when the only way we're reaching individual conduct here unlike the treaty in holland is a united states promise to pass legislation that comports with our constitutional process to say that sarin gas is i think more equivalent to something that the congress would try to deal with like the way it dealt with marijuana in rage i think that we it's just a reflection of the idea that when you're talking about things where the federal government is trying to prohibit then there's a greater federal power to do that i think with searing gas you could imagine put aside the commerce power for a second put aside the treaty power it maybe that would serin gas even under the war powers the federal congress and say look that's something that's you know it's sort of inherent y a chemical weapon and we're going to prohibit people from having that that's very different from these situations where if you think about it the only thing that makes these chemicals chemical weapons instead of chemicals is their internal interstate use in a malicious way and that's different i think from at least a hypothetical statute that says look here i mean there's three schedules in the statute forty three different chemicals that are particularly problematic if the federal government wants to regulate those and prohibit the unauthorized possession of those i don't see why they couldn't do that with or without the treaty but when what was so anomalous here is the idea that these chemicals everything rat poison vinegar or whatever it is these things are perfectly l don't think of them as chemical weapons it less and until they're used in a malicious way and then all the sudden they become classified as chemical weapons that's a very odd statute but it does i think operate in a way that is just inconsistent with bedrock principle that the federal congress just doesn't have this kind of police used here one of the chemicals that's listed in the end to the treaty i don't believe so it's certainly not one that is listed on the three schedules there forty three chemicals neither of these are on there and i do think there is an important difference because this is perhaps an odd way to think about it but you know this is a statute that's really trying to regulate nouns chemical weapons and with respect to something like weaponized chemicals or sarin gas it makes sense to say those are chemical weapons but with respect to otherwise harmless chemicals the only thing that under the government's theory turns them from chemical weapons that's far from chemicals and chemical weapons isn't a noun it's a verb it's there malicious use and that puts you to very odd sort of situation and i think that you know if congress had come in and said look there are certain chemicals that by their very nature are almost inherently weaponized i think congress would have a lot more authority to proceed in that sounds things we do we prevent that includes sorts of to finish will sections of the criminal code we call the dangerous weapon anything that you use 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 it's only when i'm using it for a prohibited purpose that it turns itself into and interest weapon well so i'm having a problem with this noun verb distinction well i isn't the intentional burning killing of another human being using chemicals the essence of what this tre trying to stop i thought that's what it was trying to do a couple who want to add on the war like purposes but couldn't the treaty permits exceptions for any peaceful purpose just sort of where a couple of points first of all generally you might be right that the criminal law takes objects that are otherwise innocence and say say they can be used in a malicious way and criminalizes it but most of that work is done by state and local criminal law and at the federal level you need something else you need a jurisdictional element something that has a distinct federal concern second as to the concerns about this could treaty power well i don't think that the government now it is initially when there's this much of a 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 now with all due respect i don't think that nation states poison romantic rivals attempt to commit suicide or try to get rodents out of their houses and so when individuals do those things i think it's hard to draw an analogy between what's forbidding to a nation state and the individual action but any work that is done in the statute by drawing that analogy is done by the statue and not by the convention so i don't know if the terrorists took these chemicals and put it on every  that that same conduct would obviously be covered directly by federal statutes that target terrorism so no matter how you decide that case with you accept or narrow if you accept or no reconstruction that conduct would be covered by two federal if you don't accept or narrowing construction but what the statute unconstitutional then that's conduct is still going to be covered and i just think when you're trying again to think about what the convention is after it is not really after ms ponds conduct i don't think any one of our treaty partners said oh my goodness there's been a deployment of chemical weapons in north down pennsylvania i sure hope the united states steps up to its treaty obligations in prosecutes this horrible deployment of chemical weapons nobody would say that there's nobody in speaking normal english would identify this as a deployment of chemical weapons that mr commanded was it's absolutely clear that the treaty was after enforcement as to individuals with respect to all the prohibit that the treaty said go   force this as to individuals and do it consistent with your constitutional processes and then congress passes a law that is consistent with its constitutional processes and it completely mirrors the treaty a necessary and proper clause that functions to allow congress to give effect to that treaty power it's you know this is a situation where there's a pro had ition on the states in terms of entering into treaties in terms of sharing that power in any way and he says you know it's just these invisible radiations than you think come from the structure of the constitution and he specifically rejected this argument the same argument that you are the state law not the other way around but he also said this one sentence that sort of bedeviled the lower courts here which says well if the treaty is valid of course the legislation is valid that made sense in the context of the treaty had before him because he had a treaty that directly prohibited individual conduct and a statute that enforced that individual's prohibition with criminal penalties so in that case i suppose it was right that the treaty in the implementing what legislation stood or fell together that's not the case here if i could reserve my time general really mr chief justice and may please the court the framers gave the federal government exclusive control over the treaty function to ensure that it could knit the nation together as one and allow it to be fully sovereign in the conduct of foreign affairs petitioners ad hoc to local limit on the treaty power can't be squared with the judgment the framers made this court's precedent or consistent historical practice since the time of the founding and it would compromise foreign affairs national security interests of the first order general let's suppose there's a multilateral treaty the international convention to ensure that nationals legislatures have full authority to carry out their obligations i e that the national legislature has the police powers and congress passes a statute saying we have the authority to prosecute purely local crimes pursuant to this international convention that the president signed and the problem with there may well be let me walk through the analysis that i think you'd have to go through and first i would make the point mr chief justice that it seems unimaginable that a convention of that kind would be ratified by two thirds of legislature i don't know why you'd look to the national legislature to say well we'd never do that well the framers thought that the two thirds guarantees the two thirds ratification would quire meant was an important structural guarantee to protect the interests of the states at a time when the senate was elected by the state legislatures yes mr chief justice but there is no doubt that the framers thought that would be an important protection but beyond that this court has said that that there is an increase in pick them it has never held that  ratified treaty exceeds in the seeds a federal government's constitutional authority has never held that a provision implementing a ratified treaty exceeds the federal government's constitutional authority or your answer is if but if you know at unimaginable things should happen it  be ok you know my answer is this but the court has said that there is an inquiry into whether the so it is a proper subject of a treaty and that that inquiry could take into account whether it is imposing a fundamental change in the character of the government but that's not a question the court needs to answer here because this treaty that the petitioner concedes is a valid exercise of the treaty power and the legislation implementing this treaty is coextensive with the obligations of the treaty there i don't know why it would not be a valid exercise of the treaty part of the case like many mke on serious conflict with our international obligations because we held look the federal government does not have the authority to tell the sheriff in texas what to do that caused a great deal of strain in our international relations and i think when i did nations could well say look we don't want treaty part parties to have to deal with whether it's somebody in this state or somebody in that province who has the authority so every signatory must have the authority doesn't strike me as not reasonably related to international obligations right but but here mr chief justice this is a valid exercise of the treaty power and there is of my hypothetical was trying to find out if there's any situation in which you believe a erosion or intrusion by the federal government on the police power could be a constraint against a international treaty that there may be an out of bound but this case is nowhere close to it and it isn't it can't be a two local exception to the treaty power which well it seems to me that are you say there may be an outer bound but this case isn't one of them you're subjecting yourself to the same criticisms that have been leveled against the other side that you're proposing a case by case evaluation with respect to each treaty no i think your honor that the question here is whether this legislation badly implemented a valid treaty this the treaty is conceivably valid the legislation is conceivably valid on its face i'd like to i'd like to explore that your proposition that there's no daylight between the treaty itself and the implementing legislation it seems to me there's a lot of daylight between the two let's take and i picked this example not because it's controversial but but because it relates to an area where the federal government has never been thought to have authority namely family law there are no you know federal marriage federal divorce federal adoption it's all in state law let's assume that an international treaty is approved by two thirds of the senate and the president which requires states to to approve same sex marriage right now if if that were a self executing treaty same sex marriage would would have to be approved by every state if it is not self executing however it will be up to congress to produce that result and congress would do it or could do it at least by having a federal marriage law and then you would have to have a federal divorce law and i suppose a federal adoption law i think there's a big difference between just doing it through a self executing treaty and dragging the congress into into areas where it has never been before i think there  between the treaty and in requiring the treated to be implemented in the fashion that that you assert is necessary here and like to make a structural point and then a specific point about this case the structural point just if it is the case as as your honour's hypothetical seems to concede as i believe the petitioner concedes that a self executing treaty that requires the president to negotiate in two thirds of the senate to ratify it can impose an obligation of that kind then it has to be the case that a non self executing treaty that is that has the same approval of the president the same two thirds ratification and the additional structural protection of passage of legislation by the the house and and being signed into law to the president can do what the self executing treaty can do it has to be the case the power if that if i don't think it has to be the case i think there there's there's a great difference between requiring the states by a sofa executing treaty to permit same sex marriage and dragging the federal government or allowing the federal government to enter into this whole field of of marriage divorce adoption family law where the federal government has never been well with respect now the point with respect to this treaty i don't think there with all due respect there is any daylight here with respect to this treaty section two twenty nine a does precisely what the treaty aba it's united states government to do and i think the notion that the treaty obligation can be satisfied by relying on the states to enforce their assault laws which i think is the core of my friend's argument here is directly contrary to the history of the framing in what is there is that is that it's the part that i can't yet get my mind to these dramatic question of whether here the local police power in some other case some other inherently state  make a treaty beyond the power of the federal government to enter into it's a very big question but i'm not there yet and the reason i'm not there is because there are some words in this treaty called other peaceful purpose and we have to interpret those words in the same words are in the statute and my question to you is what reason is there to think that those matters on the list as a fall within that  that it's infinitely long a few things on it are in homes opinion in peacefully a great case on attempted murder really talks about paying a small boy to move a barrel of kerosene with a candle in it a lit so that it will burn down a barn after a few hours of kerosene is a chemical he talks about a case where a person went to a racetrack and gave a horse a poisoned potato he talks 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 lance armstrong at least accused of unlawfully taking drugs i mean why do we think matters of list a fall within those words outside the words other peaceful purpose even though they're on lawful and by the way it anyone say to the drafters of the convention i found nothing in this brief on the point or did anyone tell congress the poison potatoes drug in hansing performance enhancing drugs example the justice alito used last time you give a vinegar to a goldfish i mean these are all chemicals not in the n x but there are chemicals and they are absolutely nothing to do with chemical weapons and why do we think that we have to get beyond that fact this a very important point here and it gets i think to the heart of what the national interest is in this case with respect to this treaty and this implementing legislation and the harm in here is in the process of line drawing with the petitioner is asking as a rule of either constitutional law or statutory construction is that courts on a case by case basis after the fact make ad hoc judgments about whether they don't know there's an easy way out of that or do you say the chemicals involved or the chemicals in the end mix but you're not prepared to say that i guarantee no one no performance enhancing drugs i would say judges are here to draw lines and between throwing all those things into it or drawing lines it's better to draw a few lines we can we can talk about hypotheticals but the point about if you told ordinary people that you were going to prosecute ms bond for using a chemical weapon they would be flabbergasted you know it it's you know it's so far outside of the ordinary meaning of the word to chance a stat that you caused an enormous an enormous spread anything that can cause death or injury to a person or an animal would it shock you if i told you that a few days ago my wife and i distributed toxic chemicals to a great number of children is the problem of one shoot apart from the n x is in defining the chemicals you throw into it a list a thousand miles long and we can tell joke after joke but it's not a joke but it's so easy to make up examples that seem to have nothing to do with the problem of chemical weapons like the syrian problem nothing to do i understand that your honor but  what is your answer that's what i want to know if you permit me to answer the question this way the line that the petitioner is asking courts to draw is whether the particular use is warlike or whether it constitutes a peaceful purpose under this convention and under the implementing statue well the very one of the very things we are trying to sort out right now in syria under the chemical weapons convention is where the line is between peaceful uses and warlike uses and this phrase peaceful uses is not only in the chemical weapons convention it's in the nuclear nonproliferation treaty and we're engaged in very sensitive negotiations right now under the nuclear nonproliferation treaty trying to draw exactly the same line and it would be terribly unfortunate i would submit if the court were to announce in the context of this case as petitioners asking a convention made a judgment that there needs to be a comprehensive ban and that you can't be drawing these kinds of lines because general you could could i ask why that is i mean because this this convention and the implementing legislation is very broad and it's broad because it applies to a very large category of weapons and it applies to a very large category of uses of conduct so what were they thinking about about why they wanted these very broad categories why it's not more limited with respect either to the chemicals or to the conduct what with respect to the chemicals i think they made the judgment because you can't predict in advance how chemicals are going to be used and how toxic they will be in particular combinations and how dangerous they will be in particular combinations and therefore you need a comprehensive definite well i was ok also if you're telling me i am tempted to draw the line that's just what i was going to do and if you're saying it's against the national security interest which is the first time i've heard that that it is the national interest against the national interest of the united states for me to attempt to draw such a on that i guess the state department better file a brief explaining why or you want our or why you why you want to push this case or i mean i'm is that what you're telling me that if i write the opinion that i think the law requires me to write that i was somehow i'm hurting the national security i don't agree there is no use that i think there is a real risk in courts getting involved in defining a line between war like and peaceful purposes or the one that i think of the convention when the when the convention is purposely drafted broadly and there are additional risks and in terms of this the very act of bringing this process of line to bear case by case ad hoc judgments about what constitutes a violation and what doesn't is going to undermine the ability of our negotiators to to make treaties in the future because they are not and you did not give the line to the chief justice is a question where there was a treaty that intruded on the federal structure you can have a treaty where the president is required to set aside any state law that in his view contravenes a national interest that's a structure  you've given us a no no principle the other way well i what i think it would be justice kennedy would suffice to decide this case for the court to conclude that the two local limit that the petitioner is advocating here as an 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 it is clear from the era of the framing that the framers intended to give the national government the power using that well in this ng or precept then that the treaty cannot be inconsistent with our constitutional structure that this court has said that the the that this court has said that in dictum repeatedly but it has said that the treaty that well be a line to be drawn but here the petitioner has conceded i think all of us would agree this is the proper subject of a treaty but there are a lot of treaties particularly i think justice alito pointed out after the world war two era where you have international conventions affecting everything we have international conventions on the abduction of children international conventions that human rights they cover a vast swath of of subject matter and it seems to me the only thing you're saying that is a limit on what the treaty power can be as a source for is some determination are no more or less no less arbitrary than the lines other people are asking us to draw between what's appropriate under the treaty power and what's not and i just would like a fairly precise answer whether there are or are not limitations on what congress can do with respect to the police power of their authorities asserted under a treaty is there that is their power to intrude upon the police power unlimited if that if the treaty well the way i would answer that mr chief justice is if the treaty is valid ok to treaty is valid then implementing legislation that doesn't go beyond the treaty is valid even if it addresses a subject that would otherwise be within the police power of the states that was the judgment the framers made and that's what that's this case and so because the treaty is valid the petitions consider the treaty is valid this statute implements the treaty word for word implementation of the obligations of that so you would rather have the court determined if we're concerned about the intrusion on the police power whether treaties or valid or not then whether determine whether a particular implementing legislation is valid or not no i think your honor that because it is conceded in this case that the treaty is valid and the petitioner has an elaborated any argument that with any principle that would allow this court to make a judgment about when an exercise of the pretty power is valid and when it isn't and you've got to take as a given in this case that the treaty i don't know how it's case to the point of the hypothetical as i'm trying to get your general principle i can imagine treaties that you would say are within the treaty power again particularly in the post world war two era but that could give rise to implementing legislation that i think would be extraordinary from the point of view of the framers in the power that it gave congress to intrude upon state  rights of course when the senate ratified it it did use its power to make reservations to preserve our federal system so that operated in exactly the manner that the framers intended there to protect to safeguard the interest of federalism and there are you know there are about a thousand ratified treaties on the books right now and we don't have a congress using the treaty power to him to usurp the role of the state you know we know that that isn't the question it's kind of question begging i mean the whole point is that some people think we do have exactly that in this case and usually when we have a case that implicates significant and serious bilateral concerns we get a lot of grief and all that from our treaty partners is there any concern it's been expressed in any concrete way by them about whether m authority to pass a comprehensive ban now it may or may push the applications of a comprehensive ban that don't advance the national interest in a profound or poignant way we understand now but the question is whe like to have as much authority as they can get to negotiate treaties were concerned about limitations on other do we have any briefs from state legislatures state authorities concerning that you know the intrusion on their prerogative this convention is a convention that all but four nations on earth have signed the legislation that we haven't acted as a model legislation that over one hundred twenty other nations have enacted as well whenever have written articles saying that could be circumvented through the use of the treaty powers you agree with up i don't think there's a yes or no answer to that i think that because because i don't think it would be that the question would be what if the treaty power encompass it d some point you 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 ins majority to have 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 protections of the constitution that's missouri v hope and i doubt that in that document the framers intended to allow the president and the senate to do anything now you ask us now to say whether the answer to that question is yes or no we still have a democracy in other words of which the house is part well if you're carrying it to an extreme that's what you are that's where you are and i'm worried about that and i think all bizarre to most so i'd ask you isn't there an easier way to deal with this case and you tell me no no because we'll interfere with some problem of foreign affairs that was never mentioned in any breach or at least hit me for the first time when you said no there you have an expression of my uncertainties at the moment and any way you want to reply to that would be help i understand the point just as prior i do understand that if there is something that seems attractive in trying to think about this is a question of statutory construction what i'm trying to point out is that it's not as easy as it seems that there are real risks to trying to draw a line of that kind and yes that does i understand that but that does raise the stakes something i understand that but i think that risk is real and i think that that that risk is real the risk that the that's clear from what pamela and said in the in the quotes that we have in our brief and others of the framers understood that that's where the line would be and i think the reason for that is that the treaty power is itself a great insubstantial independent of the national government and it is not constrained by it to local limitation that is the lesson of the era of the framing but there is not a two local limitation on the exercise of the treaty power and therefore while  pertained to self executing treaties yes there is no limitation on what what the president and the senate can impose as a self executing requirement namely that the states must give back to british citizens property that they confiscated or whatever else but it's a different question whether a treaty can expand the power of the federal congress in two areas that it has never been before and that's a separate question and neither how milton or any of the other quotes that that you refer to address that question you are so long as the treaty it's a valid exercise treaty power i think a four she or i if all you do is implement the treaty in it's a valid exercise of congress's power and i will say i said earlier that this is serious business i understand the principles of federalis serious business also but federalism is a two way street and with respect to the exercise of the treaty power the framers made a judgment that this power was going to be exclusively in the hands of the national government and it needed to be exclusively in the hands of the national government in order to ensure that the united states could be a full sovereign on the world stage now it is true that the subject matter of treaties is different now than it was at the of the founding but the but the framers understood that they were careful not to impose such a lot of limitations on the treaty power because they were wise enough to know they could not foresee what it might be important for the united states to be able to negotiate wise in ensuring that there were not subject matter limitations on that the exercise of the treaty power of the chemical weapons convention in the united states leadership in the chemical weapons convention has made a big difference in ensuring that this norm which is in our for the national interest our foreign relations interest and our national security interest is a norm that the that the nations of the world have agreed to and that we are then in a position to to have leverage to insist that the nations of the world abide by its leverage we are trying to exercise right now is critically important and i respectfully submit that the line of the petitioner is asking this court to draw not consistent with the intent of the framers with this court's precedent or with the national interest that i described thank you thank you general mr clement you have four minutes remaining thank you mr chief justice just a few points in first of all the the senate's role in the ratification of treaties cannot be a sufficient political check and one reason is that sometimes the precise role they play as a check is to make a treaty non self executed and so to take justice scalia's hypothetical example of an international treaty the purported to regulate marriage rights one thing that the senate very well might do in that case is to say well ratify it but we're going to make sure it's non self executing and maybe we'll use our spending power or something to get the states on board but we're not just going to impose a national solution so it doesn't make any sense to say that a non self executing treaty necessarily even if it's valid guarantees the validity of the enacting legislation because some of the reason you make a treaty non self executing is to preserve federalism a second point is to respond to the argument which i think i've already explained why it's not correct but is the suggestion that there is no daylight between the convention and the statute there is huge daylight and the daylight is precisely whether it affects individual conduct in how it effects individual conduct with all respect everything and justice prior to list a is not stuff that i think implicates the convention at all but yet under the government's unwavering theory that you can't make any limitations on the statute that's all covered by the statute there's your daylight now would respectfully suggest that our statutory construction argument is one way out of this i think that you have to understand the way th purposes and that's the same way we'd like you to interpret the statue now the government says you can't do that that's going to mess up what's going on in syria with all due respect i assume that the issue in syria is whether or not the nation state of syria is doing something that would violate the convention if contrary to fact there were signatory to this convention so if you want to make clear that you're only talking about individual conduct i think you can solve that problem right there but if i'm wrong and the only way is the government  can make this legislation work is to have it be an exercise of the police power within the answer is that the legislation is simply not just ask you mr comment and it's a variant of the hypothetical i gave you before but it focuses more on your statutory point the peaceful purposes suppose that and used sarin gas and sent it through the deaths of hans's house would would you say that that's a peaceful purpose i would say it's not but i think it has to do more with the particular qualities the fact that it's on schedule a the fact that nobody can possess that for any lawful use and what makes something like vinegar or even potassium chromate different is what puts it over the lead from being an ordinary chemical to a capital chemical weapon is precisely its use and alone just escaping us to great question what was congress thinking when they did this i think with respect the congress wasn't focused on this issue at all if you look at the legislation they passed implement this the chemical industry and others put in front of them the possibility that there was a fourth amendment problem with the inspections of chemical production facilities that were authorized into the convention when congress had the constitutional problem in front of it they had all sorts of provisions to deal with that constitutional concern now the future ms bonds of the world didn't have quite the same lobbying resources its chemists the chemical industry so they didn't of berta this problem and that's precisely why some kind of clear statement rule or the like would make perfect sense in this to make sure congress doesn't exercise the police power when or it thinks it's doing is implementing a treaty the last thing is just to say about the state department legally or statement about the about the treaty i'm sorry thank you counsel general the case is submitted