Seven Observations About the Oral Argument in Bond

[Marty Lederman is an Associate Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. Lederman and  law professors David Golove and John Mikhail filed an amicus brief in Bond.]

Some preliminary reactions that occurred to me as I was listening to the argument in Bond v. United States this morning (transcript available here):

1.  A Limiting Construction of the Treaty?

The most significant thing about the argument, perhaps—at least in terms of forecasting what the Court might do—is that Justices Kennedy and Breyer both indicated interest in whether the treaty might be construed so as not to cover some category of malicious uses of toxic chemicals that the international community would not have any obvious interest in regulating.  Bond’s lawyer, Paul Clement, had suggested in his brief that the Court might construe the “peaceful purpose” exception in the treaty to exempt any non-“warlike” use of chemicals.  The Solicitor General has explained why that particular construction is untenable (see pages 13-16 of his brief); and Paul appeared to concede as much this morning when he agreed that if Ms. Bond had sent sarin gas through the ducts of her victim’s house, that would not be a “peaceful” purpose, even though it would be purely local, and presumably not “warlike.”

Justices Kennedy and Breyer, therefore, were searching for another way to narrowly construe the treaty.  Justice Kennedy mentioned the possibility of imposing some sort of “clear statement” rule of construction with respect to applications of the treaty that would implicate a nation’s constitutional structure.  Justice Breyer, for his part, appeared to be pondering whether the Court could construe the “use” prohibition differently depending on the nature of the toxic chemicals in question—a sort of “two-tiered” construction:  On the one hand (if I understood him correctly), the prohibition on use would be categorical as to those especially dangerous chemicals (including sarin) listed in one or more of the three “Schedules” in the Annex to the Convention.  But at the same time the Court might read the Convention as excluding from coverage certain relatively less dangerous (because more confined) uses of all other toxic chemicals not specifically listed–uses that could not possibly, in the Justices’s view, raise any international hackles if left unaddressed.  The hypothetical cases Justice Breyer had in mind were, e.g., using kerosene to burn down a barn; feeding a horse a poison potato; using a match to set fire to a haystack . . . and perhaps Bond’s own case itself.  (Justice Breyer took his examples from Commonwealth v. Peaslee, 177 Mass. 267 (1901), a decision that Oliver Wendell Holmes issued on New Year’s Day, 1901, as Chief Justice of the Massachusetts Supreme Judicial Court.  Justice Breyer called it a “great case on attempted murder.”  Perhaps it is—the question was when extensive preparation followed by abandonment constitutes an attempt.  Not surprisingly, Peaslee doesn’t have anything to do with Congress, the treaty power or chemical weapons—which might have been Justice Breyer’s point, i.e., that cases such as Bond’s are the stuff of textbook state criminal law.)

There are at least two obvious difficulties in going down this road:  For one, it’s not easy to construe the language of the treaty to carve out such localized uses of certain chemicals but not others—and even more difficult, perhaps, to define in the language of a judicial opinion the category of cases that are too local, or too self-contained, to be of the sort that the treaty-makers presumably were most concerned.  Secondly, as the Solicitor General explained, the international community presumably settled upon a categorical prohibition (the CWC Preamble declares that the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons”) not because each and every hypothetical covered case would raise serious international concerns, but instead because a prophylactic, comprehensive ban is conducive to ensuring that all of the cases of possible international concern are covered.  The objective, in a nutshell, is to prevent various nations from deciding for themselves which uses of toxic chemicals are, or are not, worthy of international condemnation:  If, for example, the United States were to define a category of cases that are, in the Court’s view, peripheral to the primary objectives of the treaty-makers, what would prevent another nation, such as Syria, from likewise construing the Convention to exclude a different category of toxic chemical use that are, in its view, not of legitimate or significant international concern?

On the other hand, it would not be the first time the Court has narrowly interpreted treaty language to avoid interference in matters falling within the traditional police power jurisdiction of the states.  See, e.g., Yamataya v. Fisher, 189 U.S. 86, 97 (1903); Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380, 393-95 (1902); Edward S. Corwin, National Supremacy: Treaty Power vs. State Power at 304-06 (1913).  And so, if Justices Breyer, Kennedy and/or other Justices can find their way to a construction of the CWC that would not cover Bond’s use of the particular chemicals at issue, the Court would then be able to avoid the need to decide whether to impose limits on the scope of the treaty power or on Congress’s authority to enact legislation to ensure the Nation’s compliance with its international obligations—limits that could seriously compromise U.S. foreign policy interests and that therefore were decisively rejected at the Founding and have been rejected ever since.

2.  “As-Applied” Commerce Clause Affirmance?

In my post yesterday, I suggested that another way for the Court to avoid reaching any significant constitutional question would be to uphold Bond’s convictions on an “as-applied” Commerce Clause rationale.  This idea came up only once in the argument, in a question from Justice Sotomayor early on.  Paul Clement responded that under that theory United States v. Lopez might have come out differently because it was not “really disputed” in the Lopez case that the gun in question had crossed state lines.  In Lopez, however, the defendant made a facial rather than an as-applied challenge to the statute and, more to the point, the government did not try to prove that the gun had crossed state lines.  Indeed, the court of appeals in that case noted that “[c]onceivably, a conviction” under the statute “might be sustained if the government alleged and proved that the offense had a nexus to commerce.”  2 F.3d 1342, 1368 & n.53 (5th Cir. 1993).  And in the Supreme Court, Chief Justice Rehnquist specifically noted that “there is no indication that [Lopez] had recently moved in interstate commerce.”  514 U.S. at 567.  In this case, by contrast, Bond specifically acknowledged that she purchased one of the chemicals in interstate commerce (from Amazon.com), and she did not take issue in her plea colloquy with the government’s proffer that she spread both chemicals on an automobile, an instrumentality of interstate commerce.

3.  The Police Power

There were suggestions throughout the argument that a serious constitutional problem would be raised if a treaty—or legislation implementing a treaty obligation—regulated conduct that would otherwise traditionally be within the domain of the states’ “police power.”  But as our amicus brief, the brief of the United States, and several other amicus briefs explain at length, it was understood from the Framing that the treaty power could be used to regulate subjects otherwise exclusively within the states’ police power, and that has been the practice throughout our Nation’s history.  Justice Alito was exactly right in this respect:  “It is certainly true that going back to the beginning of the country, there have been many treaties that have been implemented in ways that affect matters that otherwise would be within the province of the States.”

OK, but what if a treaty authorized the federal government not only to exercise one discrete component of the traditional state police power—such as, here, prohibiting assaults with the use of toxic chemicals—but the entire police power of the states?  That was the question raised by the Chief Justice to the Solicitor General:  Imagine a multilateral convention, he hypothesized, to ensure that national legislatures the world over enjoy “the” police power, as such.  That’s a great question for a law school final exam . . . but does it resemble anything the Court might ever confront, that the Court should actually worry about?  The Solicitor General responded—correctly, I think—that it is virtually “unimaginable” that two-thirds of the Senate would vote to ratify such a treaty:  After all, look at how solicitous of state prerogatives the Senate has been in the conditions to ratification it has insisted upon for virtually every modern human rights treaty, including those that would intrude far less substantially into areas of state concern than the Chief Justice’s hypothetical convention.  But even apart from having to conjure up a Senate unlike any we’ve ever known, the Chief Justice’s hypothetical is unrealistic for another reason, as well—namely, that it is impossible to imagine one nation state even proposing, let alone most nation states agreeing to, a treaty to give all national governments “the police power.”  Such a multilateral convention would only be contemplated by the international community in a very different world than the one in which we live.  Sometimes an ingenious law school hypothetical is just that–an ingenious law school hypothetical.

4.  A Narrowing Construction of What a “Treaty” Is for Constitutional Purposes?

Appreciating that treaties and their implementing legislation have traditionally afforded the federal government authorities “that otherwise would be within the province of the States,” Justice Alito took a different tack early in the argument.  He suggested that perhaps the Court should construe the word “treaty” [presumably in Article II, section 2] narrowly, to refer only to the sorts of agreements with which the Framers were most familiar—namely, agreements involving international commerce (“things that are moving across international borders”), and the treatment of foreign subjects here in the United States (“the treatment of foreign subjects here”; the “property rights of foreign subjects”; “extradition”).  “All of those,” said Justice Alito, “concerned matters that are of legitimate concern of a foreign State.”

Justice Alito’s suggestion, as I understood it, was that perhaps the President and Senate’s treaty power—something Bond herself does not challenge in this case—does not extend to agreements that prescribe the way in which nations should treat or protect their own nationals, a subject that is not “of legitimate concern” to other states.

Such a radical notion would be deeply contrary to the historical foreign relations of the United States and virtually all other nations.  See, e.g., David Golove, Human Rights Treaties and the U.S. Constitution, 52 DePaul L. Rev. 579, 605-10, 616-18 (2002); Myres S. McDougal & Gertrude C.K. Leighton, The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action, 59 Yale L.J. 60 (1949).  As David Golove, John Mikhail and I argued in our amicus brief:

The well-being of persons in other nations . . . has long been a central foreign policy concern of many nations, including the United States, for manifest economic, diplomatic, security, and humanitarian reasons.  See, e.g., Agency for Int’l Development v. Alliance for Open Society Int’l, 133 S. Ct. 2321, 2324 (2013) (describing “comprehensive” U.S. strategy to combat the spread of HIV/AIDS around the world).  Indeed, petitioner herself appears to recognize that purely domestic uses of toxic chemicals can be of genuine “international importance,” since she concedes that § 229(a)(1) would be constitutional as applied to cases in which such domestic use “threatens widespread injury,” Pet. Br. 47, or “induce[s] fear in a civilian population,” id. at 59.

One need merely pick up the front page of virtually any newspaper of the past couple of years to realize that United States foreign policy is, for obvious and compelling reasons, deeply concerned with the ways in which individuals other than U.S. persons are treated overseas.  That is to say, it can surely be “of legitimate concern” to one state how other states treat or protect their own, something that is reflected in countless international agreements to which the U.S. is a party.  The suggestion that the Article II treaty power might not extend to such agreements would be truly revolutionary.

5.  Medellin

The Chief Justice stated, in passing, that the Court’s decision in Medellin v. Texas, “caused serious conflict with our international obligations because we held [that] the Federal Government does not have the authority to tell the sheriff in Texas what to do.”  This was probably just an infelicitous offhand characterization of the Medellin decision, which the Chief Justice himself wrote.  But it’s important to the question at issue in Bond to understand why that was not the Court’s holding in Medellin.  In fact, the Court in Medellin explained that Congress did have the authority to ensure compliance with the U.S. treaty obligation at issue there.

What the Court held in Medellin was that the President lacked the constitutional authority to issue the directives to state courts necessary to ensure U.S. compliance with the Avena decision of the International Court of Justice (and thus avoid a breach of the U.S.’s treaty obligation under the U.N. Charter).  But that conclusion was based on the separation of powers—on the Court’s assessment of the relative authorities of the President and Congress.  The Court did not hold, or even suggest, that the federal government as a whole was constitutionally precluded from ensuring treaty compliance by requiring state courts to act.  Indeed, adoption of such a view would have rendered unnecessary the Court’s extensive analysis of the President’s powers vis-à-vis Congress, and its lengthy discussion of whether Congress had implicitly acquiesced in the presidential directive to the Texas court, a discussion that presumably was premised on the assumption that such acquiescence would have rendered the directive constitutional.  Accordingly, the Chief Justice specifically pointed to the national legislature as the body empowered to implement the treaty obligation:  “Congress is up to the task of implementing non-self-executing treaties.”  552 U.S. at 521.

6.  Distinguishing Missouri v. Holland

In an effort to distinguish Missouri v. Holland, Paul Clement argued that the Bond case arises in “a very different context” because in Holland “the treaty itself prohibited individual action:  An individual violated the treaty if they took a migratory bird out of season. And so in that sense, the enforcement statute did nothing more than put a criminal penalty on violating conduct that was already prohibited to the individual.”

It’s not clear why that distinction would make a constitutional difference.  But, in any event, it is not an accurate reading of the treaty at issue in Holland.  Article II of that convention provided that “[t]he High Contracting Powers [the U.S. and Great Britain] agree that . . . there shall be established the following [specified] close seasons during which no hunting shall be done [with specified exceptions].”  And in Article III of he Convention, the U.S. and Great Britain agreed that “there shall be a continuous close season” on other specified birds.  39 Stat. 1703.  The treaty did not by terms “establish” the close seasons itself, in the sense of purporting by its own force of law to impose any obligation on private parties such as hunters.  To the contrary:  Article VIII required the two nations “themselves to take, or propose to their respective appropriate law-making bodies, the necessary measures for insuring the execution of the present Convention.”  Id. at 1704.  Accordingly, it was understood by all involved (and has been ever since) that the Migratory Bird Treaty was non-self-executing, in the sense that it required national legislation in order to impose any obligations on private parties.

And Congress thereafter enacted just such legislation:  Section 2 of the Act of July 3, 1918—entitled “An Act to give effect to the convention . . . ”—provided that, except as permitted by subsequent regulations, “it shall be unlawful to hunt, take, capture, kill, [etc.], any migratory bird, included in the terms of the convention between the United States and Great Britain.”  It was that provision that established a restriction on private conduct.  Criminal sanctions attached by virtue of another provision of the Act, section 6.  40 Stat. 755-756.  If the enforcement statute had done “nothing more than put a criminal penalty on violating conduct that was already prohibited to the individual,” as Paul suggested, it would have sufficed for Congress to have enacted only section 6, and not section 2.

It is therefore not surprising that the Court itself, in Holland, stated that it was the “act of July 3, 1918” that “prohibited the killing, capturing or selling any of the migratory birds included in the terms of the treaty except as permitted by regulations compatible with those terms, to be made by the Secretary of Agriculture.”  252 U.S. at 431-32.

7.  An Absurd Federal Prosecution?

Finally, I think it is important to offer a few words about the Bond prosecution itself, since it has been so roundly ridiculed and caricatured—in news stories, here on OJ, and in Court this morning–as though it were Exhibit A of an out-of-control, voracious federal government indifferent to the balance of our federal system.

Carol Anne Bond used two chemicals:  The first, 10-chlorophenoxarsine (which is not available to the general public), can be lethal to an adult in very small doses, and just a few ingested crystals can kill a child.  The other, potassium dichromate, is lethal in even smaller quantities—and at a minimum it can cause ulceration and perforation of the nasal septum and pulmonary edema.  Although Bond apparently did not wish to kill Haynes or her young child, she did attempt to poison or burn Haynes with potentially lethal doses of these chemicals more than two dozen times over several months.  Before realizing that the substances were toxic, Haynes used the same hand that had touched the chemicals to give her child a toy, which the child would put in her mouth.

Haynes called the local police about a dozen times; but they simply told her to go get her car washed. When Haynes found powder on her mailbox, she again called the police, who told her to call the federal postal service.  Haynes did so.  At which point the postal inspectors placed surveillance cameras in and around Haynes’s home, and thereby discovered what Bond was doing.  (Recall that one of the first federal criminal statutes prohibited tampering with the mails, a measure Chief Justice Marshall called “essential to the beneficial exercise of [Congress’s postal establishment] power,” McCulloch, 17 U.S. at 417.  The Court has explained that the letterbox on one’s home is in effect the property of the federal government, “an essential part of the Postal Service’s nationwide system for the delivery and receipt of mail.”  USPS v. Council of Greenburgh Civic Ass’ns, 453 U.S. at 128.)

In light of all this, is it really so “unimaginable,” as Justice Kennedy suggested, that the Postal Service began its investigation, and that, upon seeing the evidence, the U.S. Attorney brought this prosecution, resulting in a straightforward guilty plea?  Recall that a few envelopes sprinkled with anthrax almost brought the Nation to its knees in 2001.  Imagine if Carol Anne Bond’s placement of highly toxic poisons in a mailbox and on an automobile had resulted in several deaths, and the federal government had failed to press the case even after the Pennsylvania authorities had repeatedly exercised their “prosecutorial discretion” to ignore Myrlinda Haynes’s pleas for help.  In that case, would anyone have viewed the federal inaction as reflecting a reasonable respect for our system of federalism?