The Curious Case Of Bond v. US

Yesterday, SCOTUS ruled that the federal government cannot use a law implementing an international chemical weapons treaty to prosecute a private citizen. Garrett Epps describes what the court called “this curious case”:

This is the second installment of the soap opera of Carol Anne Bond. Bond’s husband and her best friend conceived a child. When she found out, Bond, a trained laboratory technician, turned to the hostile use of 10-chloro-10H-phenoxarsine and potassium dichromate, both deadly poisons. She smeared them on various doorknobs and car doors at Hayes’s house, on one occasion giving Hayes’s thumb a nasty burn. She also unwisely smeared them on Hayes’s mailbox, which is by law part of the U.S. Postal System. Postal inspectors posted security cameras and caught her on video. Federal prosecutors proclaimed this “a very serious, scary case,” because Bond had stolen four pounds of potassium dichromate from her workplace. They charged her with theft of the mail—and violation of 18 U.S.C. § 229, the Chemical Weapons Convention Implementation Act of 1998.

On Monday a six-justice majority, in an opinion by Chief Justice John Roberts, told the government it had misread the statute to “sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room,” and “make[] it a federal offense to poison goldfish.” Roberts was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. All nine justices agreed that the government had gone too far in prosecuting Bond. The majority said the indictment violated the statute; Justices Antonin Scalia, Clarence Thomas, and Samuel Alito would have held the prosecution unconstitutional.

Amy Howe explains how the justices split on the constitutional question:


Because the Court held that the federal ban on chemical weapons does not apply to Bond, it left for another day whether Congress – relying on its constitutional power to approve treaties – can also pass laws to put a treaty into effect in the U.S., even if no other provision of the Constitution would have given it the authority to do so.  (The Court will often refrain from deciding a question involving the Constitution if it can decide the case on some other, non-constitutional ground – a principle known as “constitutional avoidance.”)

But Justices Scalia, Thomas, and Alito all would have weighed in on that question, because in their view it was “clear beyond doubt” that the federal chemical weapons law applied to Bond.  They would have struck down her conviction for another reason:  that the mere fact that the Constitution authorizes Congress to approve treaties does not automatically mean that laws passed to put the treaties into effect are constitutional.  And here, in their view, the federal ban on chemical weapons is not.

Noting that “the court was unwilling simply to say that it was interpreting the law flexibly to avoid an absurd result,” Noah Feldman worries that the ruling, though narrower than Scalia, et al. would have liked, will still have broader consequences than it ought to:

See, Congress’s power to pass the chemical weapons law derived from its authority to pass laws implementing treaties. Everyone agrees such authority exists, even though it isn’t expressly stated in the Constitution. But not everyone agrees on whether Congress can use this power to pass laws that might trench on states’ rights. And arguably, the authority to regulate ordinary assaults is within the states’ exclusive power. Drawing on all this, the court, in a 9-0 decision, announced that the law must be found ambiguous in what it called “this curious case” because read literally the statute would be improbably broad, even “boundless,” and would potentially impinge state prerogatives. It held that it would have needed a “clear indication” that Congress intended to apply the law to this conduct — and indication the court found lacking.

If this sounds fine, it isn’t. Despite the court’s apparent preference to cabin its holding to these strange facts, the decision will probably be read to limit Congress’ ability to legislate based on its power to implement treaties. In the future, it can be argued that a given statute shouldn’t be applied because Congress hasn’t been “utterly clear” that it does. This may not bother the states’ rights justices, but it should bother anyone who cares about the U.S. fulfilling its international treaty obligations.

Posner reads Scalia’s opinion as a strategic move meant to head off a very particular threat:

The unstated target of the opinion is the international human rights treaty. Those treaties ban all kinds of police-powers-related stuff. The Senate ensured that they were not self-executing, but I suppose that the next time Democrats control the government, they could pass laws that implement them. At least in theory, a Democratic sweep could result in ratification of a human rights treaty that bans the death penalty, and then implementation of it through a federal statute. Not likely to happen anytime in the next few decades if ever, but you can’t fault Scalia for failing to think ahead.