Is Missouri v. Holland on a Near-Term Collision Course with the Supreme Court?
Quite possibly. Here’s the Third Circuit’s merits opinion in United States v. Bond, involving a conviction under the Chemical Weapons Convention Implementation Act of 1998. The court upheld the conviction against a Tenth Amendment attack, this after the Supreme Court last year found Ms. Bond to have standing to press the federalism claim. After rehearsing the academic debates on Missouri v. Holland (many citations here to Curt Bradley, David Golove, and other lawprofs), Judge Jordan’s majority opinion concludes:
Whatever the Treaty Power‟s proper bounds may be, however, we are confident that the Convention we are dealing with here falls comfortably within them. The Convention, after all, regulates the proliferation and use of chemical weapons. One need not be a student of modern warfare to have some appreciation for the devastation chemical weapons can cause and the corresponding impetus for international collaboration to take steps against their use. Given its quintessentially international character, we conclude that the Convention is valid under any reasonable conception of the Treaty Power‟s scope.
So, maybe not the best test case for Missouri? Think again. Judge Ambro, concurring, after acknowledging the act’s constitutionality under the precedent:
But if ever there were a statute that did test those limits, it would be [this Act]. With its shockingly broad definitions, [the Act] federalizes purely local, run-of-the-mill criminal conduct. The statute is a troublesome example of the Federal Government‟s appetite for criminal lawmaking. Sweeping statutes like [this one] are in deep tension with an important structural feature of our Government: “The States possess primary authority for defining and enforcing the criminal law.‟
Both Jordan and Ambro expressly urge the Supreme Court to clarify Missouri’s boundaries. Paul Clement for the petitioner! Stay tuned!