Bond v. United States (2014)

Bond v. United States, (2014) is a follow-up to the Supreme Court's 2011 case of the same name. In the 2011 case, The Court reversed the Third Circuit, and concluded that individuals as well as states can bring a Tenth Amendment challenge to federal law. The case was remanded to the Third Circuit for a decision on the merits, and the Third Circuit again ruled against Bond. On appeal, the Supreme Court reversed and remanded again, ruling that the Chemical Warfare Act (CWA) did not reach Bond's actions, and that she therefore could not be charged under that federal law.

Background

Carol Anne Bond is a microbiologist from Lansdale, Pennsylvania. In 2006 Bond's best friend became pregnant. When Bond discovered that her husband was the child's father, she attempted to poison her former friend by putting organoarsenic and potassium dichromate on the woman's door knob. Bond was caught, and was convicted under the CWA. In her appeal, she argued that applying the chemical weapons treaty to her violated the Tenth Amendment.^[1] The Court of Appeals ruled that Bond lacked standing to make a Tenth Amendment claim.^[2] On appeal, the Supreme Court reversed, stating that individuals can bring Tenth Amendment claims. The Court then remanded the case for the Third Circuit to decide the case on the merits.

On remand, the Third Circuit found that "because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that 'there can be no dispute about the validity of [a] statute' that implements a valid treaty, we will affirm Bond's conviction."^[3] Bond again appealed to the Supreme Court, asking the court to overrule Holland, or to alternately find that her actions were not covered by the CWA.

The case attracted a great deal of attention, with U.S. Solicitor General Donald Verrilli arguing for the Government and former General Paul Clement arguing for Bond. Senator Ted Cruz wrote an essay for the Harvard Law Review's blog urging the Court to overturn Bond's conviction.^[4]

Decision

Chief Justice Roberts opens his opinion by vividly describing John Singer Sargent's life-sized painting of mustard gas victims. Roberts closes by noting "There are no life-sized paintings of Bond's rival washing her thumb."

Unanimous in the judgment, the Court concluded that the CWA was not meant to cover such local activities as Bond's poisoning attempt. Writing for the Court, Chief Justice Roberts declined to define the scope of Treaty Clause powers, invoking constitutional avoidance. Because the Chemical Weapons Convention is non-self-executing, and because the Convention requires implementation by a signatory to be “in accordance with its constitutional processes”, Roberts focused his attention only on statutory interpretation of the federal criminal code.

According to Roberts, one of the key “background principles of construction” is federalism. He wrote that Congress must make a “clear indication” if Congress intends to “dramatically intrude upon traditional state criminal jurisdiction”. The Court concluded that there was no such clear indication in the text of the criminal statute.

Roberts rejected the Solicitor General’s interpretation of the statute, noting that the Government’s reading would make it a federal offense to poison your children’s goldfish and that state authorities are fully capable of punishing burrito poisoners.^[5] Finally, Roberts briefly responds to Justice Scalia’s interpretation, noting that adopting “the most sweeping reading of the statute would fundamentally upset the Constitution’s balance."

A famous line from his opinion comes at the end: "The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon."^[6]

Concurring in judgment

Justice Scalia, joined by Justice Thomas and partly by Justice Alito, concur only in judgment. Scalia departed from the majority by, first, reading the text as clearly federalizing a purely local crime. Second, Scalia concluded that it is unconstitutional for Congress to federalize a purely local crime.

Scalia discounted the Court’s logic as “result-driven antitextualism [that] befogs what is evident.” Constitutional avoidance, according to Scalia, does not require interpreting the statute in a constitutional way because Scalia reads the text as “utterly clear”. Because the “unavoidable meaning of the text” is different from the meaning adopted by the majority, Scalia then proceeded to the constitutional question.

Scalia opined that the necessary and proper clause does not apply to implementing treaties. Therefore, a treaty can only be implemented through Congress’s other enumerated powers. While this is directly contrary to long-standing precedent, Scalia argued that he can overrule that precedent because he finds Justice Holmes’s holding in Missouri v. Holland (1920) “unreasoned”. As a counterfactual, Scalia feared that by using unlimited treaty powers, Congress could enter into an antipolygamy treaty and thereby ban polygamy.

Justice Thomas, joined by Justice Scalia and partly by Justice Alito, agreed with Scalia that CWA reached Bond and that Holland should be overruled. Rather than concluding that the implementation of the Chemical Weapons Convention is unconstitutional, Thomas instead argued that the treaty itself is unconstitutional. Because the scope of the treaty power cannot regulate “purely domestic affairs,” Thomas argued that the United States has the power to enter a treaty domestically banning chemical weapons.

Seeking the founders’ original understanding, Thomas began by reviewing international law publications from the 1600s.^[7] While noting that contemporary dictionaries disagree with him, Thomas concluded that the founders understood treaties as only governing “international intercourse”.^[8] He then cited as support the 1796 floor speeches made by Congressmen unsuccessfully attacking passage of the Jay Treaty.^[9] Furthermore, the reason an 1815 treaty could constitutionally preempt a South Carolina law authorizing the local kidnapping of free negroes was because, according to Thomas, some of the sailors being enslaved were British.^[10]

Thomas closed by acknowledging that his distinction “may not be obvious in all cases.” He noted that although the parties to the case did not argue that chemical weapons bans are unconstitutional, he is sure that he would be able to apply his limits to the treaty power “soon enough.”

Justice Alito agrees that CWA covered Bond's actions and that the CWA exceeded Congress' treaty-making power.

Subsequent history

The New Republic viewed the concurring justices’ isolationist approach as an attempt to judicially pass the failed Bricker Amendment.^[11] The Cato Supreme Court Review focused on Scalia’s use of Cato’s amicus brief.^[12] The forty-three page Harvard Comment on the case declared Bond “a trivial entry in the federalism canon”.^[13]

See also

• Missouri v. Holland
• Reid v. Covert
• Medellín v. Texas

References

External links

• SCOTUSBlog summary of Court opinion