Bond v. United States (2014)

Treaties and federalism

The United States Constitution contains two important clauses concerning treaties. Article II, which describes the powers of the president, grants the president the power, "by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur."^[1]: 1523 Article VI describes treaties as forming part of the "supreme Law of the Land," alongside federal statutes and the Constitution itself.^[2]: 1612 Furthermore, Article I, describing the powers of Congress, permits it to "make all Laws which shall be necessary and proper" to carry out other powers of the federal government.^[3]: 29

Conversely, the Tenth Amendment restrains the federal government's powers to those described in the Constitution; other powers are "reserved to the States respectively."^[4]: 486 These provisions, taken together, raised questions over whether Congress could avoid potential states' rights objections to federal legislation by entering into treaties and then passing laws to implement these treaties, especially given that, according to Article VI, federal law preempts, or supersedes, the laws of individual states.^[5]

In 1920, the U.S. Supreme Court issued an opinion in Missouri v. Holland, which would prove to be "[t]he seminal decision concerning the scope of the treaty power," as described by Curtis A. Bradley.^[4]: 486 Holland implied that legislation passed by Congress pursuant to a treaty was almost always valid, even if it would otherwise exceed the powers allotted to the federal government.^[6]: 307 In 1957, this proposition was scaled back somewhat when the Supreme Court ruled in Reid v. Covert that treaties could not grant the government powers "free from the restraints of the Constitution."^{[7]: 82–83} Holland nonetheless remained good law, and lower courts were hesitant to discard its thesis that treaties granted Congress authority that it normally would not have.^[8]: 184

For much of the 20th century, the question of the treaty power's scope was thought moot because Congress already had extensive powers under other parts of the Constitution.^{[7]: 83–84} In the 1990s, however, the Supreme Court began to institute and emphasize restraints on the federal government, reviving the debate over the treaty power's scope.^{[9]: 625–26} Two prominent views in favor of overruling Holland were that of Nicholas Quinn Rosenkranz, who believed that treaty-implementing legislation could not exceed Congress's pre-existing powers,^{[10]: 207–08} and Bradley, who argued that treaties themselves should be subject to the same limits as any other federal law.^[11]: 1416 These arguments in favor of a limited treaty power were premised on the idea that treaties and their implementing legislation, if not properly checked, could infringe on the sovereignty afforded to states under the Tenth Amendment,^[12] and supporters and critics of Holland debated whether it comported with the intended design of the Constitution.^{[13]: 74–78}

The possibility of revisiting Holland came up in 2012, when the Supreme Court considered Golan v. Holder, which concerned whether legislation passed to implement the Berne Convention, a treaty concerning intellectual property, exceeded Congress's power to establish copyrights.^[10]: 212 The government had argued that, even if the Court were to find that the legislation exceeded Congress's copyright powers, it would still be constitutional as treaty-implementing legislation under Holland.^[14] During oral arguments in Golan, Justice Antonin Scalia commented, "I do not think a treaty can expand the powers of the federal government," implying an openness to overturning Holland.^[15] However, Golan was ultimately decided without reliance on the Berne Convention or the treaty power.^[16]: 1475

Chemical Weapons Convention

The Chemical Weapons Convention (CWC) is a multilateral treaty which prohibits countries from creating, using, or stockpiling chemical weapons.^[17] The CWC additionally obligates countries to ensure that non-state actors, such as individuals or organizations, do not obtain or use chemical weapons, including passing criminal legislation to punish such.^{[18]: 2269–70} The United States ratified the CWC in 1997 and Congress passed the Chemical Weapons Implementation Act (CWCIA) in 1998 to bring it in compliance with the treaty.^[19]: 117 Among other mechanisms to implement the CWC's goals, section 229(a)(1) of the CWCIA criminalizes individual possession and usage of chemical weapons,^[20]: 208 more specifically making it illegal to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon."^[8]: 192

Events and procedural history

In 2005, microbiologist Carol Anne Bond learned that her husband had had an affair with her best friend, Myrlinda Haynes, resulting in pregnancy.^[21] Seeking vengeance upon Haynes, Bond stole 10-chloro-10H-phenoxarsine, an arsenic-based compound, from her workplace and ordered potassium dichromate from the Internet.^[22] She combined these chemicals into a toxic, bright-orange powder and dusted various surfaces around Haynes's home in Pennsylvania, including doorknobs and the inside of her car, with the substance.^[23] In doing so, Bond intended to harm Haynes, but not kill her.^[24]: 68

However, the mixture's color alerted Haynes as to Bond's actions, and ultimately, the only injury Haynes suffered at Bond's hands was a small burn on her thumb. Haynes's mail carrier alerted the U.S. Postal Service, which videotaped Bond spreading the mixture on 24 separate occasions.^[25] Bond was subsequently arrested in 2007 and, after the trial court denied her motions to dismiss the charges,^[26]: 16 pleaded guilty to mail fraud and possessing and using a chemical weapon in violation of section 229(a)(1),^[27] reserving the right to appeal.^[28]: 328 After being sentenced to six years in prison, she appealed to the Philadelphia-based Third Circuit Court of Appeals.^[29]

The basis of Bond's appeal was that section 229(a)(1) was unconstitutional because it criminalized actions committed entirely within one state; regulating these "local" crimes is traditionally an exclusive power of the states rather than the federal government.^[30]: 1007 Initially, however, the court of appeals found that Bond lacked standing to challenge the law.^[31] The Supreme Court reversed this finding on appeal in 2011, requiring the court to decide the actual merits of Bond's claim.^[32]

On remand, the court of appeals unanimously upheld her conviction, finding that section 229(a)(1) criminalized her assault on Haynes and, per Holland, was constitutional. Despite this, two of the three judges who heard the appeal, Kent Jordan and Thomas Ambro, suggested that the Supreme Court clarify the nature of Holland,^{[33]: 1960–61} with Ambro warning of a potential "blank check" for Congress to pass any law that was "rationally related to a valid treaty," while judge Marjorie Rendell wrote that federalism was irrelevant to the case.^{[34]: 433–34} Bond appealed to the Supreme Court, which on January 18, 2013, granted certiorari again, this time to consider Bond's statutory and constitutional arguments.^[35]

Oral arguments

Paul Clement, Bond's attorney

Donald Verrilli, United States Solicitor General

The Supreme Court heard oral arguments on November 5, 2013. Former Solicitor General and Supreme Court argument specialist Paul Clement represented Bond at oral arguments;^[53] he had also represented Bond during her prior visit to the Supreme Court.^[54]: 405 Incumbent Solicitor General Donald B. Verrilli Jr. represented the federal government. The attorneys and justices vigorously debated the scope of both the CWC and the treaty power. Stephen Breyer remarked that the treaty could potentially reach chemicals which, while unlawful, were not "weapons," such as performance-enhancing drugs, while Samuel Alito jokingly pondered whether chocolate, being poisonous to dogs, qualified as a chemical weapon.^[55] Breyer and Anthony Kennedy discussed the possibility of narrowly construing the CWC to avoid implicating the Constitution or other domestic concerns. The justices also expressed worries about the potential effects of the case on American foreign relations. Chief Justice John Roberts noted that a prior Supreme Court decision, Medellín v. Texas, had also involved the intersection of international obligations and federalism and resulted in "serious conflict." Alito considered a narrow interpretation of "treaty" under the Constitution which would only encompass "matters that are of legitimate concern of a foreign State."^[56]

Sonia Sotomayor noted that, at the time of oral arguments, the United States had recently condemned Syria for the Ghouta chemical attack, claiming that "it would be deeply ironic" if American chemical weapons control obligations were to become unconstitutional; Clement suggested that the Court resolve this by construing section 229(a)(1) to only encompass "war-like" usages of chemicals, though Verrilli claimed that the Court should instead respect the executive branch's "exclusive control over the treaty function." Ruth Bader Ginsburg noted an incongruity in the fact that neither party disputed that the CWC itself was constitutional, but the CWCIA did not add anything to the treaty's provisions; Clement responded that the CWC did not regulate individuals, though Elena Kagan pointed out that the treaty did command states to pass laws doing so.^[57] Breyer criticized Verrilli's arguments in favor of a "comprehensive ban," emphasizing a need to "draw lines," though Kagan worried about the judiciary potentially usurping treaty-making.^[58]

Roberts asked Verrilli whether Congress could claim "national police powers" using a treaty, to which Verrilli responded that it was "unimaginable" that the Senate would ratify such a treaty; Kennedy responded by calling the government's prosecution of Bond similarly "unimaginable." Scalia criticized the government for attempting to "drag Congress into areas where it has never been before," and suggested that, taking the government's arguments to the extreme, Congress could force all states to recognize same-sex marriage by ratifying an appropriate treaty.^[59]

Despite the debate over the constitutionality of section 229(a)(1), neither party discussed Holland in detail.^[60] Kagan and Clement briefly discussed it, though Clement distinguished Holland as not encompassing individual conduct.^[61] After oral arguments, observers believed that the Court would overturn Bond's conviction,^[62] though they were unsure how; Rosenkranz, who helped write the Cato Institute brief, remarked that "the Court may not reach the big question."^[63]: 231 Holly Doremus of UC Berkeley School of Law conversely speculated that Verrilli's "aggressive" approach could lay groundwork for a sweeping ruling, in contrast to Clement's strategy of permitting a narrower outcome.^[64]

Concurrences

Concurring justices in Bond

Samuel Alito

Antonin Scalia

Clarence Thomas

Justices Alito, Scalia, and Thomas wrote individual concurrences. They all agreed with the majority in vacating Bond's conviction, but believed that section 229(a)(1) was an unconstitutional encroachment on states' rights under the Tenth Amendment. All three called for Holland to be limited or overruled.^{[2]: 1610–11}

Scalia's concurrence began by criticizing the majority's interpretation of section 229(a)(1). He argued that Roberts had unnecessarily employed the federalism canon to distort the otherwise-clear meaning of "chemical weapon," which in his view did, in fact, encompass the chemicals Bond used to attack Haynes.^[74]: 416 Because of this, Scalia believed that the Court should have considered Bond's constitutional arguments, decrying the majority's interpretation of the statute as "gruesome surgery" intended to shy away from the "obligation" the Court had to strike down unconstitutional legislation.^[75]

Turning to the constitutional argument, Scalia considered what kind of treaty-related laws Congress could pass. Adopting Rosenkranz's argument against Holland, Scalia wrote that Article I only empowered Congress to pass laws which helped bring treaties into being, but not laws which implemented or enforced those treaties, which had to be supported by other provisions of the Constitution. Scalia believed that the reading of Article I in Holland granted essentially limitless power to the federal government;^{[76]: 1541–46} in theory, Congress could pass any legislation, unencumbered by the Constitution, simply by repeatedly making treaties with a foreign country.^[77]

Thomas joined Scalia's concurrence, but wrote a separate opinion (which Scalia joined) discussing the nature of treaties under Article II. Taking an originalist perspective,^{[10]: 212–13} he stated that the founding generation would have only viewed agreements on international affairs to be "treaties," and thus the treaty power did not extend to purely domestic matters. However, he noted difficulties in discerning appropriate treaty subjects (in part because neither party discussed the matter in their briefs), expressing hope that "the increasing frequency with which treaties have begun to test the limits of the Treaty Power" would bring a new opportunity to consider the topic in detail.^{[1]: 1525–26}

Alito joined Thomas's concurrence and Scalia's interpretation of section 229(a)(1). In a one-page concurrence, he endorsed Thomas's limitation of the treaty power to "matters of legitimate international concern," noting that, although the "heart" of the CWC was clearly an international matter, "insofar as the Convention may be read to obligate the United States to enact domestic legislation," it was outside the treaty power's proper scope.^[78]: 302