Bond v. U.S.: Government Tells Court to Bug Out

Yesterday, the Supreme Court heard oral argument in Bond v. United States. Mrs. Bond had smeared a toxic chemical on a romantic rival’s doorknob and mailbox, resulting in a thumb burn. She was federally prosecuted for violating a federal statute that implements the international Chemical Weapons Convention. The statute is broad indeed; as Justice Alito noted in an earlier round of litigation, it makes poisoning a goldfish with vinegar a federal crime. Earlier coverage is here.

After the argument, it’s possible that the case may decide some very large constitutional questions, thanks in no small part to the government’s breathtakingly aggressive stance. The key question is whether the feds can mow constitutional federalism barriers by treaty and implementing legislation. Solicitor General Verrilli’s answer was an emphatic “yes.” Not a good idea: excerpts from the transcript (which is here) convey the justices’ incredulity.

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Commerce and the Court (I)

I’ve griped before (I think) about the Supreme Court’s less-than-stellar record on protecting the commerce of the United States. The Upside-Down Constitution contains an extended riff on the theme. As always, I am entirely right. A pair of Supreme Court case—a lamentable cert denial last week, and a blockbuster argument this week—confirms the analysis and illustrates the justices’ passive-aggressive posture.

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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.

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How Convenient

Today’s Supreme Court decision in Armour v. City of Indianapolis presents another lamentable setback for folks (myself included) who’d like to rehabilitate a “rational basis” test that requires an actually—if minimally—rational basis for “economic” government regulation. Indiana’s “Barrett Law” allows cities to pay for public improvements by apportioning the costs of a project “equally among all abutting lands or lots.” Here, the City of Indianapolis built a sewer serving 180 households. It sent those households a formal notice explaining that each homeowner could pay the entire assessment ($9,278 per property) in a lump sum or in installments, which would include interest…

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United States v. Bond: From Broccoli to Vinegar

Yesterday, the Third Circuit Court of Appeals issued a second ruling in United States v. Bond. In a 2009 ruling, the court had held that Mrs. Bond lacked standing to challenge her criminal conviction on the grounds that the federal statute that prohibited her conducted was beyond the authority of Congress. In a unanimous decision, the Supreme Court reversed the Third Circuit’s standing determination and remanded the case.  Now, on the merits, the lower court has sustained the conviction—unanimously, but in separate opinions and not without grave misgivings. The sources of discomfort are many, beginning with the facts. Mrs. Bond discovered…

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Federalism’s Hope: Analysis and Speculation

Yesterday’s post described a sharp sectional divide in contemporary American federalism: pro-competitive states versus pro-cartel states. The divide holds across Obamacare/Medicaid, labor, environmental, tax, and cultural issues. Here is the basic map again (the competitive coalition appears in red, the cartel cabal in blue):

Today, as promised, some thoughts on what the sectional divide might mean for American politics and federalism.

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The Triumph of Constitutional Argument

The legal professoriate and commentariat are completely unhinged over the impending demise of the individual mandate, the conservative justices supposed infatuation with Tea Party nostrums (see, e.g., Charles Fried’s pathetic tut-tut), and General Verrilli’s supposedly incompetent defense. So let’s go to the transcript and try to explain this one more time, in terms that even the Harvard crowd may be able to comprehend.

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ObamaCare Update

Prediction: after today’s oral arguments over the Patient Protection Act, the individual mandate is in very deep trouble and quite probably as good as gone. While Paul Clement’s argument probably did not swing any wavering justices, it likely settled whatever doubts they may have entertained. In any event, it was absolutely brilliant. Personal favorite: a polite but firm dressing-down of Justice Breyer, in one of his increasingly frequent demagogic moments (pages 60-64 of the transcript). The mandate’s impending demise lends additional interest to tomorrow’s argument over (1) the mandate’s “severability” from the remainder of the statute and (2) the question of…

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