Straight Up, With Multiple Twists: Bond v. United States

Herewith, Bond v. United States is making its fourth appearance on this blog (prior entries here, here, and here.) But we’re pikers: having already ruled on the case once (on a jurisdictional question), the Supreme Court looked at the case eight times before finally granting cert this past Friday. No Court watcher can recall anything like it. The justices occasionally “relist” a case for cert consideration; if it gets relisted again, that usually means that the case was rejected and one or more justices asked for time to write a dissent from the denial. Seven relists, and then a grant? The perplexing trajectory suggests that this case may be a very big deal indeed—for federalism, treaty law, and the U.S. Constitution. Not to mention sanity.

To recap: Defendant-petitioner, Mrs.Bond, discovered that her husband had fathered a child with a friend of hers. Bent on revenge, she procured poisonous chemicals, which she smeared on her rival’s mailbox, car door handles, and house door knob. The chemicals caused a “thumb burn” on the part of the victim, which required rinsing with cold water. The prosecution concedes that there was never any intent to kill and that no danger to the public ever arose.

While plenty of state laws exist to address this sort of conduct, Mrs. Bond was indicted and prosecuted on a charge of violating the federal Chemical Weapons Implementation Act (1998). In here-relevant part, 18 U.S.C. 229(a) provides that

It shall be unlawful for any person knowingly -

(1) to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon; or

(2) to assist or induce, in any way, any person to violate paragraph (1), or to attempt or conspire to violate paragraph (1).

A “chemical weapon” means any “toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter.”  229F(1)(A).  A “toxic chemical” in turn is “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”  229F(8)(A).

If that sounds kind of broad, relax: a toxic chemical does not qualify as a chemical weapon if it is used for “[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.”  229F(7)(A). Still, if you knowingly possess and spray insecticides in your kitchen for the decidedly non-peaceful purpose of causing permanent harm to animals, you’ve probably violated the statute. The maximum penalty for violations of the statute is death. Mrs. Bond drew six years in the slammer.

In a 2009 ruling, the Third Circuit held that Mrs. Bond lacked standing to challenge her criminal conviction on the grounds that the federal statute that prohibited her conduct was beyond the authority of Congress. In a unanimous decision, the Supreme Court reversed and remanded the case. The lower court then sustained the conviction over Mrs. Bond’s constitutional objections—unanimously, but in separate opinions and not without expressing grave misgivings about the harebrained  prosecution. (Why was it brought? Hunch: for PR purposes DoJ and its minions want to rack up “terror convictions,” and this one counts.)

Constitutionally, what’s a stake in Bond is the scope of the treaty power. (The feds say that the Court need not confront that question because the statute is constitutional anyhow under the commerce power. That claim is probably waived, and I doubt very much that the Court granted cert to hear yet another Commerce-Clause-plus-criminalization case. However, for reasons below the Commerce Clause may make a backdoor entrance.) The feds argue as follows:

  • The U.S. is a signatory to an international (1993) Chemical Weapons Convention. Plainly constitutional, and a very good thing.
  • To implement the treaty domestically, Congress enacted the Chemical Weapons Convention Implementation Act. That’s what Congress does for numerous treaties (those that aren’t “self-executing”). Maybe 18 U.S.C. 229 is broader than “necessary” for purposes of implementation; but the Constitution leaves that judgment to Congress, not the Court.
  • Mrs. Bond’s conduct squarely falls under the terms of the prohibition: toxic chemical, knowing possession and use, non-peaceful purpose. QED.

Mrs. Bond’s lawyers (Paul Clement, and Ashley Parrish and his colleagues at King & Spalding) will have to break that stormtrooper syllogism:  there must be some line that separates an international agreement over weapons of mass destruction from casual ant spray users. So where and what is the line? Might as well start at the top:

The piece de resistance here is Missouri v. Holland (1920), a nasty piece of work by Justice Holmes. The Court upheld the 1918 Migratory Bird Treaty Act, an implementing statute, and implementing regulations by the Secretary of Agriculture on the grounds that the treaty did not “contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.” The passage nicely encapsulates the pathology of progressive constitutional thought. The federal government isn’t one of enumerated, limited powers; it can do anything it wants until it encounters “prohibitory words,” such as the First Amendment. And, the Constitution contains no structural principles (such as federalism or for that matter the separation of powers), only an “invisible radiation.” The case has often been read in that Holmesian spirit: The treaty power can reach stuff that Congress could not reach under its (other) enumerated powers. Any law that implements a treaty is ipso facto constitutional, barring some Bill of Rights violation.

That’s how internationalists of various stripes read Missouri and its progeny. (Many insist that even executive interpretations of international agreements and ”customary law” trump domestic arrangements.) That has to be wrong, though. As a rule, Congress may not “commandeer” state officials, see Printz v. United States: could it do so for the purpose of implementing a treaty? Congress may not compel the purchase of a product, see NFIB v. Sebelius: could do so on the pretense of implementing some international confab on the rights of widows and orphans? Doubtful, to say the least.

In truth, you don’t have to read Missouri so broadly. The treaty at issue dealt with things that cross international and national borders. There was no daylight between the treaty and the implementing legislation. And the state’s federalism argument was, as Holmes noted, a “thin reed.” There, in a nutshell, you have “proper” bounds of the treaty power. (For more on this, see the exchange between Rick Pildes, Nick Rosenkranz and Ilya Somin on the volokhconspiracy.) Having articulated those bounds, you could then say—as the Bond cert petition argues—that at the very least, courts should read treaties and implementing statutes to avoid constitutional doubts. The exemption for “peaceful” uses indicates that Congress intended to combat the spread of chemical weapons and materials for war-like purposes, as opposed to arming criminal prosecutors with yet another all-purpose club.

The argument is more difficult than one might think. The government’s ready reply is that you can’t use a constitutional avoidance canon to create doubt where none exists. Holland isn’t really an issue here because Congress didn’t do anything that it could not also do under the Commerce Clause.  Congress in its infinite wisdom decided that it needed a closed and complete regulatory system, just as it does for purposes of, say, the Controlled Substances Act. Under that statute, the plants on your window sill are fair game for the feds, see Raich. Well then: so is the stuff under your kitchen sink.

No point in speculating about the outcome. This much, one can say with a tolerable degree of confidence: The justices know this case. Four justices on one side or the other voted to grant because they want to get to the grand themes of Missouri, and they would not have done so if they weren’t reasonably sure of a fifth vote on the merits. The difficulty of obtaining at least an implicit “fifth” precommitment is to my mind the readiest explanation for the multiple relists. (If someone has a better guess, let’s hear it.) If that’s right, the briefing and argument task is to shake or hold that vote, however it cuts.

One more point of near-certainty: whichever way the case goes, what the justices say along the way will shape the contours of treaty law and its constitutional boundaries for many, many years to come.

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book isy The Upside-Down Constitution (Harvard University Press, 2012).

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