Argument recap: Benefitting from confusion
on Feb 22, 2011 at 5:36 pm
Analysis
Near the end of the Supreme Court’s argument Tuesday in Bond v. U.S. (09-1227), attorney Paul D. Clement accurately summed up what had been happening for much of the hour. What had “kind of happened today in oral argument,” he said, was that the Court and counsel seemed to “conflate the merits and the standing issue.” The Court had not agreed, in the case, to decide whether Congress had overstepped its powers when it made it a crime to deal in chemical warfare, but rather only whether a person charged with that very crime could come to court and make the challenge. Carol Anne Bond appeared to have emerged with the right at least to be in court, there to take her chances — exactly what Clement sought.
The Court definitely had difficulty staying focused on whether Bond should have any right to challenge her federal conviction for using a “chemical weapon” to get revenge against a former friend who became pregnant by Bond’s husband; the ex-friend wound up with a burned thumb. The most vivid example of the difficulty was on display in the astonishment of Justice Samuel A. Alito, Jr., when he said the law used against Bond was so broad that she could have been prosecuted if she had merely put vinegar into her former friend’s goldfish bowl, killing the little creatures.  That is a really telling way of putting the very argument on the merits that Bond would like to make, if only she were granted “standing” to make it.
The Third Circuit Court had refused to let Bond challenge the sweep of the law Congress adopted to implement a global treaty against the spread of chemical weapons; as a result, the Circuit Court said nothing about Congress’s powers. Bond’s lawyers had argued that what she did was, at most, a purely local crime, yet Congress had unconstitutionally federalized her crime with a sweeping ban on any form of using toxic chemicals that could hurt a person or an animal. Only a state can make such a claim, the Circuit Court said.
Clement had persuaded the Court to hear her “standing” claim, but the oral argument Tuesday showed the Justices keenly interested in some of the most fundamental questions about the nature of the government that was created under the U.S. Constitution. The Court’s questions roamed over the scope of the lawmakers’ treaty power and their authority to regulate commerce, as well as over the structural limits that the Constitution imposed to keep the vast powers of the federal government from threatening the liberty of the citizens, and from undermining the rights of the states.  Occasionally, one or another Justice would say that the Court was getting beyond the “standing” issue it was to review, but the reminders did not keep the argument from continuing as a constitutional seminar.
If there was one constitutional theme that stood out in the wide-ranging exploration, it was that a private citizen does have a keen personal interest in seeing that Congress does not use its legislative powers extravagantly, in a way that threatens that citizen’s liberty. Justice Anthony M. Kennedy, who often asserts that the constitutional “design” is what it is precisely to assure citizens’ liberty, summed up that theme in a comment to a lawyer appearing in the case to defend the sweep of the chemical weapons law. “Your underlying premise,” Kennedy said, “is that the individual has no interest in whether or not the state has surrendered its powers to the federal government, and I just don’t think the Constitution was framed on that theory.”
Justice Antonin Scalia echoed the point. What was at stake, Scalia said, was not the right of the states that such a broad law threatened; “it’s a right of the individual to have the state take charge of certain matters and the federal government take charge of other matters.” (Some of the comments, indeed, sounded like a rehearsal of arguments the Court might hear when, for example, the constitutionality of the new health care law comes under review.)
Clearly, that theme, and the overall pattern of the argument, worked to Clement’s advantage and, thus, to that of his client. Not a harsh word was said about the evil intent of Carol Bond in going after her husband’s paramour with a nasty mixture of chemicals, and even the most conservative Justices appeared to have little doubt that an individual, faced with the potential of a life prison term in a federal penitentiary, should at least have a day in court to contest the law being aimed at her.  And, as Chief Justice John G. Roberts, Jr., such an individual should not be put to the “harsh” task of justifying the specific legal rationale for making such a challenge.
The argument, therefore, was a hard one for Clement’s adversaries. Deputy U.S. Solicitor General Michael R. Dreeben, supporting Bond’s right to make her specific challenge but trying to get the Court to salvage some special prerogative for the states alone to defend their own sovereignty, ran into strong complaints — especially from Justice Scalia — that he was trying to put over an entirely new approach to the “standing” issue. And private attorney Stephen R. McAllister, chosen by the Court to defend what the Circuit Court had done when the Justice Department would not do so, had a difficult time pressing an expansive view of Congress’s legislative authority while strenuously disputing Bond’s right to challenge that authority.
The trend in the argument pointed toward a return for Bond to the Third Circuit, albeit with no guarantee that, in sending the case back, the Justices would have dictated that she should ultimately succeed with her challenge.
