June 2014

Guest Post: Stepping Back from the Precipice in Bond

[David Golove is the Hiller Family Foundation Professor of Law at the New York University School of Law. Marty Lederman is a Professor at the Georgetown University Law Center. This contribution is cross-posted at Just Security.] The Supreme Court has finally issued its decision in United States v. Bond.  Although it appeared the Court might be on the brink of a momentous decision that would have substantially diminished the historical reach of the treaty power, or of Congress’s power to ensure the nation’s compliance with its treaty obligations, none of the radical theories put before the Court attracted more than three votes.  Bond clearly is significant.  But its significance lies not in what the Justices did, but instead in what a majority of them declined to do.  In short, the decision sustained the constitutional status quo. In an opinion written by the Chief Justice, a six-Justice majority did what one of us had proposed (and the other had hoped the Court might do)—namely, to use a plain-statement presumption in order to construe the statute in question so that it does not apply to the discrete conduct involving the two private individuals in this particular case.  The Chemical Weapons Convention, and the federal statute implementing that treaty, were drafted broadly, presumably so that they would not fail to cover the sorts of cases of dangerous use of chemicals that the treaty-makers plainly had in mind.  The result, however, is that the words of the statute, read literally, would also make a federal crime out of virtually any “nonpeaceful” use of toxic chemicals, including all run-of-the-mill poisonings traditionally handled under state law.  This goes well beyond anything that motivated the treaty-makers.  The Chief Justice is surely correct that, notwithstanding the breadth of the treaty and statutory language, “there is no reason to think the sovereign nations that ratified the Convention were interested in anything like Bond’s common law assault.”  The paradigmatic case that the treaty is designed to address, wrote the Chief, is the sort of chemical attack depicted in John Singer Sargent’s haunting 1919 painting “Gassed.”  But as the Chief jibed, “[t]here are no life-sized paintings of [Carol Anne] Bond’s rival washing her thumb” after she had touched the toxic chemicals that Bond had spread on her car, mailbox and front door.* The Chief Justice therefore construes the federal statute not to cover Bond’s conduct.  [See Curt Bradley in defense of the Court’s plain-statement analysis.]  The precise scope of the majority’s statutory construction remains a bit obscure.  (Presumably the law is not limited to conduct that is apt to inspire great paintings!)  But this much is clear:  The Court explains that the statute does apply in cases where toxic chemicals are used for “assassination, terrorism, and acts with the potential to cause mass suffering”—presumably even if such offenses are wholly intrastate and/or where they do not involve any foreign nationals.  The Chief writes that such cases do not implicate federalism concerns because “[t]hose crimes have not traditionally been left predominantly to the States.”  But of course it has predominantly been state law that traditionally handled such "noneconomic, violent criminal conduct," and the Chief Justice does not explain why creation of a parallel federal offense would not implicate the federalism concerns reflected in the Court’s Commerce Clause decisions since Lopez (1995).  Accordingly, the Court’s confirmation of Congress’s power to implement treaties by criminalizing such conduct is quite important, as we explain further below. The most important aspect of Bond, however, was not its statutory interpretation but the fact that the ground-breaking constitutional limitations offered up to the Court each failed to attract the support of a majority of Justices. a.  Limiting Congress’s Power to Implement Treaties The Cato Institute filed an amicus brief urging the Court to hold that even in cases where the President and the Senate conclude a valid treaty, Congress lacks any specific power to pass legislation necessary and proper to ensure that the United States abides by its treaty commitments.  This deeply counterintuitive argument—that the Necessary and Proper Clause empowers Congress to enact legislation to help the President and the Senate make treaties, but not to help the federal government implement the nation's agreements—was first suggested by Cato’s lawyer, Professor Nicholas Rosenkranz, in 2005 (that is to say, more than two centuries after adoption of the relevant constitutional provisions).  As we explain in Part II of our amicus brief in Bond, this argument is simply implausible on historical, textual, and structural grounds—not to mention inconsistent with a series of Supreme Court decisions, including the unanimous opinion in Neely v. Henkel (1901) and Justice Holmes’s celebrated 1920 decision in Missouri v. Holland. In his opinion concurring in the judgment in Bond,