by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law. To hear more from Professors Tushnet and Lobel about Bond and the rest of the Court’s October Term 2013, please RSVP here.
The Roberts Court is properly described as a business-friendly Court. It’s also a Court that is sort of friendly toward federalism, as the commerce clause holding in the Affordable Care Act decision – though thankfully not the ultimate outcome – shows. But, federalism and business interests sometimes come into conflict. Businesses operating on a national scale often hope that Congress will preempt state regulations, so that they face only a single national rule rather than fifty or more regulations different in every state and sometimes in a bunch of cities. And, when Congress doesn’t make it clear that its statutes preempt state regulations, businesses want the Court to interpret federal statutes to be preemptive.
On Tuesday, the Court heard oral argument in Bond v. United States, a bizarre case on its facts that raises important questions about the scope of Congress’s power to enact statutes implementing treaties. The arguments suggested that some of the Court’s conservatives, and perhaps Justice Breyer, were inclined to say that Congress couldn’t use its power to implement treaties to reach truly local activities (although the precise formulation of the restriction they might adopt wasn’t clear).
Everyone seemed to agree, though, that the Bill of Rights limited the power to implement a treaty. And, whatever you might say about the treaty power and federalism, that does indeed seem to be a consensus position.
The consensus might be on a collision course with business interests, though, for the same reason that businesses sometimes favor preemption and national regulation over state regulation. In a forthcoming article in the Harvard Law Review, Marvin Ammori describes what he learned from general counsels at major commercial disseminators of information over the internet. For them, Ammori reports, Congress is basically just one state legislature or city council trying to regulate their activity along with a whole bunch of other legislatures – parliaments in France and Japan, and everywhere else. And, just as with preemption, these businesses might want to replace a system of lots of different regulations with one regulatory system.
The way to do that, of course, is through an international agreement – a treaty joined by the United States. But, in the course of negotiating a treaty to serve business interests, the United States might well have to make concessions on issues important to its treaty partners. And, the law elsewhere is often more sympathetic to regulation of speech in the service of privacy interests (U.S. libel law protects a lot more speech than defamation law elsewhere does) and equality interests (hate speech regulation).
So, to get the treaty U.S. businesses want, U.S. negotiators might have to agree to restrictions on speech disseminated over the internet that would, if imposed purely domestically, would violate the First Amendment. Of course they’d do their best to work out a treaty that gave U.S. businesses what they wanted and also fit well with U.S. free speech law, but they might not able to get the treaty partners to go along. And, also of course, the Senate might not ratify a treaty that simultaneously promoted the interests of U.S. businesses and violated the First Amendment. But, I wouldn’t place large bets on these possibilities.
If the general counsels’ vision plays itself out over the next twenty years, the consensus in the United States about the relation between the treaty power and the first Amendment might well come under pressure. The Roberts Court’s approach to the treaty power and the Bill of Rights might flow from convergent conservative and liberal visions developed over the past few generations. Those visions, though, might not fit well with the place of the United States and U.S. businesses in the world economy over the next decades. Bond might end up as a vindication of an existing consensus that economic change might make outdated. It will take a few decades for all this to play out, but I think it might be worth thinking about more than the short-term in trying to understand what the Court ought to do in defining the scope of the treaty power.