Supreme Court Update: Bond v. United States (12-158)
Greetings, Court fans!
We're back to bring you last week's decision in Bond v. United States (12-158), the case of the jilted wife-cum-accused chemical terrorist; and the news that the Court refused to issue a stay in National Organization for Marriage v. Geiger (13A1173), in which the district court struck down Oregon's ban on same-sex marriage. The Court's order in Geiger has the effect of allowing same-sex marriages to proceed in Oregon, but there's not much more we can say at this point, as the Court did not share the reasoning behind its one-line order.
And so we move on, or rather back, to Bond v. United States (12-158). Astute readers may recall that the case was already before the Court once, in 2011. A quick recap: after Carole Anne Bond learned that her husband had had an affair with (and impregnated) her best friend, Bond decided to exact revenge by obtaining toxic chemicals from her workplace and off the internet, and spreading them on various surfaces her rival might touch. The intended victim was able to spot and avoid the chemicals all but once. That one time, she suffered a minor chemical burn that she was able to treat by rinsing with water. The victim called the local police, but the feds eventually got involved because one of Bond's preferred surfaces was a USPS mailbox. Federal prosecutors charged Bond with possessing and using a chemical weapon, in violation of section 229 of the Chemical Weapons Convention Implementation Act of 1998. As its name suggests, the Act served to implement the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction – an international treaty ratified by the United States in 1997.
Bond moved to dismiss, arguing that section 229 exceeded Congress's enumerated powers and violated the Tenth Amendment. The District Court denied the motion, and the Third Circuit affirmed, finding that Bond lacked standing to bring a Tenth Amendment challenge. On Bond's first trip up, the Court found that she did indeed have standing. On remand, the Third Circuit rejected Bond's argument that section 229 did not reach her conduct, finding that while the government's broad interpretation threatened to turn every "kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache," her conduct did not fall within the statute's exception for use of chemicals for "peaceful purposes." The Third Circuit also rejected Bond's constitutional challenge, finding that section 229 was a necessary and proper means of executing Congress's Treaty Power.
The Court reversed the Third Circuit again. All nine Justices agreed that Bond should not have been prosecuted under the Act. A 6-member majority led by the Chief held that Congress never intended for section 229 to reach Bond's conduct (thereby avoiding the constitutional question), while the remaining three justices would have tackled the constitutional question head-on and found section 229 to be unconstitutional.
The majority started with the well-established principle that courts should not decide a constitutional question if there is some other ground upon which to dispose of a case. It then added another well-established principle, that courts should be certain of Congress' intent before finding that a federal law overrides the usual balance between federal and state powers. Here, section 229 closely tracks the language of the Chemical Weapons Convention and forbids using any "chemical weapon," broadly defined to include any "toxic chemical" that can "cause death, temporary incapacitation or permanent harm." In the Court's view, the definition of "chemical weapon" is so broad that it is ambiguous: did Congress really mean to reach purely local crimes such as Bond's? The Court found that it did not. No educated English speaker would describe the chemicals Bond used, in the manner she used them, as "chemical weapons." The government's broad reading, on the other hand, would "transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults." That would displace the traditional role of the States in dealing with such crimes. There was no indication that Congress intended to do so, and thus section 229 did not reach Bond's conduct.
Justices Scalia, Thomas, and Alito concurred in the judgment, but they would have reached the constitutional question and found section 229 to be unconstitutional. Justice Scalia, joined in full by Thomas and in part by Alito, criticized the majority for what he called "result-driven antitextualism." There was no occasion to refer to the ordinary meaning of "chemical weapon," as the majority did, because section 229 explicitly defined the term. In Scalia's view, the text of the statute was clear, and clearly covered Bond's conduct. The only question was, was it constitutional? The Necessary and Proper Clause grants Congress the power to make all laws "necessary and proper for carrying into Execution … all other Powers vested by this Constitution…." The Treaty Power gives the President "Power, by and with the Advice and Consent of the Senate, to make Treaties…." Scalia, joined only by Thomas on this point, would have held that these Clauses together only empower Congress to pass laws necessary and proper for carrying into execution the power to make treaties (e.g., allocating funds to hire treaty negotiators, forming a commission to study the benefits and risks of entering into a treaty), not the power to execute the treaties themselves. Otherwise, Congress would be able to pass any law, even in areas that go beyond its enumerated powers, simply by finding another country willing to enter into a treaty on that subject. Justice Thomas penned a separate opinion to express that the Treaty Power itself should be limited to the regulation of international affairs. Justice Alito agreed, and would have found section 229 to be unconstitutional insofar as it purported to regulate domestic conduct.
That's all for now! We'll be back soon to bring you the three decisions the Court handed down today.
Kim, Jenny & Tadhg