A narrow reading of chemical weapons ban for Bond: In Plain English

Like the fictitious soap operas All My Children and One Life to Live before it, the long-running real-life soap opera that was Bond v. United States ended its run today. The case had the potential to be a big one, offering the possibility that the Court could put significant limits on Congresss power to pass laws putting international treaties into effect. (My earlier Plain English coverage of the case is available here and here.) But in the end, despite the possibility of drama, Bond turned out to be more like the anticlimactic series finale of another long-running show Seinfeld. Lets talk about todays decision in Plain English.

If you missed the earlier episodes of Bond and are tuning for the first time today, the facts and issues before the Court can be summed up nicely with some quotations from todays opinion: do federal laws banning the use or possession of chemical weapons apply to a purely local crime: an amateur attempt by a jilted wife [Carol Anne Bond] to injure her husbands [pregnant] lover, which ended up causing only a minor thumb burn readily treated by rinsing with water? All nine Justices agreed with Bond that she cannot be prosecuted in federal court. For six of them, that was because the federal ban on chemical weapons does not apply to her at all; the other three believed that the ban does apply to her but would still throw out her conviction because it violated the Constitution.

Chief Justice John Roberts wrote for the Court, in an opinion that was joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Even though both Bond and the federal government had spent most of their efforts debating whether the Constitution gives Congress power to pass the federal ban to implement an international convention on chemical weapons, the Court sidestepped that issue by starting with whether the federal law prohibiting the use of chemical weapons applies to what Bond did at all.

When reviewing federal laws involving subjects such as criminal law that are traditionally the responsibility of the states, the Court emphasized, courts should find that a federal law overrides the states powers only if Congress clearly intended to do so. But the Court found no clear indication in this case that Congress intended the chemical weapons ban to apply to conduct like Bonds. For example, the kinds of chemicals that Bond spread on the doorknob and mailbox belonging to her husbands mistress were not the kind of deadly toxins that people associate with chemical weapons. On the other hand, the governments reading of the chemical weapons ban would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room, the Court suggested. In fact, it continued, [a]ny parent would be guilty of a serious federal offensepossession of a chemical weaponwhen, exasperated by the childrens repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar. (I dont know about the Chief Justices childrens goldfish, but my childrens goldfish never live long enough for me to consider poisoning them.)

The six Justices in the majority acknowledged that Bonds conduct is serious and unacceptable. But that is not enough to prosecute her under the federal chemical weapons ban, they determined. This is particularly true when the federal government has only used the ban to prosecute a handful of crimes, all of which were far more serious than Bonds, and when state laws are more than adequate to prosecute someone like Bond. Moreover, neither the federal government nor the other countries that are signatories to the international convention that the federal ban implements, the Court added, have any interest in seeing Bond go to federal prison.

Because the Court held that the federal ban on chemical weapons does not apply to Bond, it left for another day whether Congress relying on its constitutional power to approve treaties can also pass laws to put a treaty into effect in the U.S., even if no other provision of the Constitution would have given it the authority to do so. (The Court will often refrain from deciding a question involving the Constitution if it can decide the case on some other, non-constitutional ground a principle known as constitutional avoidance.)

But Justices Scalia, Thomas, and Alito all would have weighed in on that question, because in their view it was clear beyond doubt that the federal chemical weapons law applied to Bond. They would have struck down her conviction for another reason: that the mere fact that the Constitution authorizes Congress to approve treaties does not automatically mean that laws passed to put the treaties into effect are constitutional. And here, in their view, the federal ban on chemical weapons is not.

And so the case of the poisoned paramour comes to an end. In his separate opinion, Justice Thomas suggested that, in some future case, the Court should consider the scope of the governments power to make treaties in particular, whether it applies only to issues of international relations, rather than applying also to issues that are traditionally domestic. But until then, we will have to be content with the new drama airing at the Court next Term: the case of the undersized grouper.