Opinio Juris Podcast on Arguments in Bond v. United States

by Peter Spiro

Peggy, Julian, Duncan and I took a stab at a podcast discussion of Tuesday’s Supreme Court arguments in Bond v. United States.



You can now find an audio of the argument itself here. Mentioned in the course of the discussion are related posts by David Golove and Michael Ramsey here and here. The Nick Rosencranz Harvard Law Review article that has been a key point of attack is found here (Eric Posner’s brutal critique here). The excellent symposium volume on Missouri v. Holland put together by Peggy McGuinness in 2008 is found here.

We’ll hope to do this again in the future (but only if we can find some good theme music).


3 Responses

  1. Thanks, guys.  That was very interesting . . . and revealing.
    For the reasons I explained in my OJ post, and that Peggy recounted, I don’t think this prosecution was nearly as objectionable or as absurd as the common wisdom would have it — these chemicals weren’t available “over the counter,” and the case is a far, far cry from giving a dog some chocolate.  (Indeed, change one or two facts — the baby and the friend die; or it’s sarin; or it’s these chemicals but they’re placed on a few Boston doorhandles — and all of a sudden federalism concerns appear to fall away on almost everyone’s reading, including Paul Clement’s.) 
    Peggy was right on the money in explaining why the SG could not offer a limiting construction of the CWC at oral argument, even when prompted by Breyer to do so:  What, exactly, should he have offered?  It’s not an accident that none of you was able to come up with a line that would be acceptable — nor is it surprising that Paul Clement abandoned the ones he had offered (local v. nat’l; “warlike” v. nonwarlike) as soon as Justice Kagan raised the sarin hypothetical.
    The four of you floated two possibilities.
    The first was Julian’s suggestion that perhaps the CWC/statute should be construed not to cover cases where the States could prosecute (or that such prosecutions are constitutionally dubious, in any event).  That line would obviously be too broad, because the States can prosecute in *every* case of malicious use of chemicals — and, for that matter, in every case of terrorism, but that’s hardly a reason, e.g., for thinking that the Tsarnaev prosecution should have been left to Massachusetts authorities.  (Indeed, most States could have prosecuted the killing of migratory birds in 1920 — does that mean that the CWC and its implementing legislation should have been construed not to apply in those States?)
    The second notion that you all discussed was that perhaps the CWC/statute should be construed only to cover cases that could reasonably be thought to raise international hackles.  I think you all realized that that’s hardly a standard that could be judicially administered.  (What if Bond’s action here would have resulted in several deaths?  If it had been sarin?  etc.)
    Moreover, it’s question-begging.  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.”  The international community, in other words, did wish to proscribe all nonpeaceful uses–to make this the sort of conduct, like torture, that is seen as beyond the pale.  Now, of course it is true that the international community would not in fact be very concerned with each and every hypothetical covered case–including the absurd chocolate-to-dogs and lighted-match examples.  But perhaps it settled upon a categorical prohibition in order to ensure that all of the cases of genuine, possible international concern are covered–i.e., perhaps they recognized that it is exceedingly difficult to draw legal lines that will not risk a failure to cover some important cases.  The last thing the international community would have wanted, I assume, is for each state to decide for itself what is “inherently” local and what is of “truly” international concern.
    Even so, I share David Golove’s hope that the Court will fashion a narrowing construction of the convention — or at least announce a “plain statement” requirement that must be satisfied before the treaty will be understood to cover a certain category of cases — and thereby avoid any need to get tangled up in the scope of the treaty power or the scope of the Necessary and Proper Clause.  The Justices and their clerks are creative and they have several months to craft a judicious resolution, something that is hardly beyond their ken.
    One other thing:  It’s true that not much attention was given to Congress’s implementing power in the Holland litigation or opinion.  But as Golove, John Mikhail and I explain in our amicus brief, that’s because there was hardly a proposition of constitutional law more settled than that Congress could pass statutes to effectuate U.S. treaty obligations, even when such legislation would not have otherwise been within Congress’s Article I authorities — something that virtually everyone agreed upon, regardless of their varying views on the scope of the treaty power itself.  The Cato/Rosenkranz contrary view suffers from many flaws (which we try to canvass in our brief), but perhaps chief among them is how deeply it is belied by the entirety of U.S. constitutional history on the N&P power, not only w/r/t to implementation of treaties but also w/r/t all of Congress’s other enumerated powers, as well.  I would be surprised if even Justice Scalia buys it — at a minimum, he’d have to abandon his own understanding of the N&P Clause in Raich, which is directly at odds with the Rosenkranz reading.

  2. Thanks.   I would also just like to note that Bond and CATO picked the wrong case to fight for the 10th Amendment, because there are dozens of federal laws against tampering with mailboxes to protect federal mail carrier employees (see, e.g., http://about.usps.com/publications/pub278/welcome.htm ).   Didn’t the prosecution just pick the wrong charge?

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