Constitution Daily Update: Manning faces new legal battle, another NSA controversy

Bradley Manning’s request for hormone therapy is likely to start another legal battle for the convicted WikiLeaks suspect, who now wants to be called Chelsea Manning; also, we look at the debate about a constitutional right to an education.

756px-Anonymous_-_Bradley_ManningItems To Watch

1. The NSA may have been collecting as many as 56,000 “wholly domestic” communications each year, it admitted in a redacted 2011 secret court opinion that was declassified by U.S. intelligence officials. The data collection stopped that year and the data was deleted in 2012.

2. One day after being sentenced to 35 years in prison, Bradley Manning said in a statement he wants to undergo hormone therapy and will now live as a woman. Fort Leavenworth, the military prison where Manning will serve his sentence, currently does not offer hormone therapy. Manning’s lawyers will pursue the issue.

Developing Questions …

Here are some updates on new discussions about top-of-mind constitutional issues.

1. Is there a limit to Congress’s power to implement treaties?

In Missouri v. Holland, decided in 1920, the Supreme Court rejected an effort by Missouri to enjoin federal regulations protecting migratory birds which Congress passed to fulfill an obligation of the United States under a treaty with Great Britain. Missouri said the regulations interfered with states’ rights.

The Court ruled by 7-2, with Justice Oliver Wendell Holmes Jr. concluding that the statute was “necessary and proper” to implement the treaty, which superseded the state’s authority. That was so even though the states were capable of regulating the subject and the scope of the legislation was outside the powers of Congress in Article 1, Section 8.

In the upcoming Supreme Court term, Amanda Frost reports at Scotusblog, the Court will reconsider that case and the limits on Congress’s power to implement treaties in Bond v. United States.

In a 2005 Harvard Law Review article, Nicholas Quinn Rosencranz argues that Missouri v. Holland was wrongly decided and contradicts the principle that the federal government can act only within its enumerated, or explicitly spelled out, powers. Otherwise, the argument goes, Congress can use treaties to get around limits to federal authority that the structure of constitutional government carefully included, thus expanding Congress’s authority.

But in the Missouri case, a strong counterargument is made in an amicus brief that while the government’s power to make treaties is not unlimited, it is not as limited as Rosencranz contends.

The question before the Court in the Bond case is whether the Constitution, through the necessary and proper clause, gives Congress the power to implement valid treaties. Article I gives explicit power to implement treaties, without expanding Congress’s authority.


On this day in 1972, 3,000 antiwar demonstrators show up at the Republican National Convention in Miami to disrupt the sessions that would eventually lead to Richard Nixon’s nomination for a second term as President.

Closing Notes

1. White House spokesman Josh Earnest says President Obama doesn’t favor changing federal laws about marijuana, but he also believes drug-enforcement resources should be concentrated on dealers and people who perpetuate violence.

2. Daily Tech looks at a possible Eighth Amendment issue if the military refuses to pay for Bradley Manning’s gender reassignment procedures. One conflict is that if the military agrees to Manning’s request, it would need to honor similar requests from active service members who aren’t in prison or dishonorably discharged.

Editor’s note: The Update is a summary of news and commentary about the Constitution and related issues, as reported around the digital world. Guest contributors and our editorial staff add to the daily update, and we welcome your suggestions (and reports) at [email protected].

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