June 2, 2014

"The horrors of chemical warfare were vividly captured by John Singer Sargent in his 1919 painting Gassed."

First sentence of the Chief Justice's majority opinion in Bond v. United States (PDF) issued today.



The Court read the federal Chemical Weapons Convention Implementation Act of 1998 not to cover "a purely local crime: an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only readily treated by rinsing with water."
[N]o speaker in natural parlance would describe Bond’s feud-driven act of spreading irritating chemicals on  Haynes’s door knob and mailbox as “combat.”  Nor do the other circumstances of Bond’s offense—an act of revenge born of romantic jealousy, meant to cause discomfort, that produced nothing more than a minor thumb burn — suggest that a chemical weapon was deployed in Norristown, Pennsylvania.  Potassium dichromate and 10-chloro-10H-phenoxarsine might be chemical weapons if used, say, to poison a city’s water supply.  But Bond’s crime is worlds apart from such hypotheticals, and covering it would give the statute a reach exceeding the ordinary meaning of the  words Congress wrote....

The Government’s reading of section 229 would “‘alter sensitive federal-state relationships,’” convert an astonishing amount of “traditionally local criminal conduct” into “a matter for federal enforcement,” and “involve a substantial extension of federal police resources.” It would transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults.
Through this statutory interpretation, the Court avoided the question whether Congress has an enumerated power that would support such a dramatic move into the realm of local crime. Justices Scalia, Thomas, and Alito rejected what they saw as a strained effort to find ambiguity in the statute in order to avoid what, to them, is the judicial duty to tell us about the limits on congressional power. On the constitutional question — which is the power to make laws necessary and proper to the enforcement of treaties — Scalia (joined by Thomas) said the Necessary and Proper Clause cannot mean that Congress is "one treaty away from acquiring a general police power":
No law that flattens the principle of state sovereignty, whether or not “necessary,” can be said to be “proper.”
Thomas writes (joined by Scalia and Alito) to stress that "the Treaty Power is itself a limited federal power":  "[T]o interpret the Treaty Power as extending to every conceivable domestic subject matter—even matters without any nexus to foreign relations—would destroy the basic constitutional distinction between domestic and foreign powers."

Scalia, Thomas, and Alito would have given us an important constitutional law opinion, but it was not to be. And yet the majority also showed respect for federalism values, which drove the search for unclearness in the statute that could be resolved against the exercise of federal power.

22 comments:

Heartless Aztec said...

Good Court decision - and I speak as one who, within living and speaking memory, had loved who were gassed on the Western Front in 1918.

mccullough said...

That this federal prosecution was ever brought, and that this result was then defended on appeal, shows that executive power needs to be hockey checked.



gerry said...
This comment has been removed by the author.
SJ said...

Can this reasoning also apply to "Lacey Act"?

Didn't one of the Justices recently say that infringement on Constitutional Rights can't be upgraded into Constitutionally-protected action simply because it has been done for a long time?

The Lacey Act dates back to 1900, and was originally intended to allow the Feds to help State game wardens crack down on poachers.

However, I think the current application of the Lacy Act makes it dangerous to deal in, own, or possess anything that was produced from an animal or tree that is considered endangered/protected by any of the States in the Union.

This implementation can snare non-poachers by mere possession of an item that might be the result of paoching...

AustinRoth said...

Always remember, any opinion authored by Roberts takes into account his fear of being ostracized by the Beltway social scene.

Birkel said...

The Constitutional Law decision would have been a nice bit of stare decisis to have in the hip pocket once the Left comes back into control of both Houses of Congress and the Presidency again. This last time we got the wished-for Health Insurance takeover (READ: Trojan Horse for single payer) the Left has always wanted.

Next time (or maybe the time after) we'll get a UN agreement limiting the Second Amendment that the Left has wanted for some while now.

It would be nice to have a SCOTUS decision out in front of that issue.

That said, I'm happy that the Court exercise discretion in not writing a narrow decision in line with past Court practices. If only I had the faith that a Chief Justice Sotomayor *shivers* would keep to the Court's traditions.

C R Krieger said...

Please review with me again which version of the opinion this is.  Not the final final, for sure. But, is it the first final or the second final at the PDF?

Thanks

Regards  —  Cliff

BarrySanders20 said...

It's less activist to find the quiet exit to a disputed judicial issue when the judges know which way the case should go, but disagree on how to get there. The problem those on the right have with this approach is when it is used to resolve cases that otherwise would have provided the opportunity to drop the hammer on a larger ideological issue. Judges on the left do not seem to be as accommodating -- they don't back off when given the opportunity to affect significant change through judicial pronouncement

David said...

Somewhere in Norristown, Pennsylvania, a husband’s paramour suffered a minor thumb burn at the hands of a betrayed wife. The United States Congress—“every where extending the sphere of its activity, and drawing all power into its impetuous vortex”1—has made a federal case out of it. What are we to do?

Brilliant!

Mark said...

Congress—"every where extending the sphere of its activity, and drawing all power into its impetuous vortex"...

Why no Vortex tag?

Left Bank of the Charles said...

The result is eminently sensible but the phrasing of Chief Justice Roberts is a little too cute:

"[t]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard".

But what if the kitchen cupboard contains a pressure cooker? Can the Federal Government reach into that cupboard (as it is now in the Boston Marathon Bombing trial)?

Then we have this Monty Python sketch, the Ministry of Silly Statutory Interpretations:

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, and in which ALITO, J., joined as to Part I. THOMAS, J., filed an opinion concurring in the judgment, in which SCALIA, J., joined, and in which ALITO, J., joined as to Parts I, II, and III. ALITO, J., filed an opinion concurring in the judgment.

Left Bank of the Charles said...

The next President of the United States will be ecstatic to know that using chemical agents against her husband's lovers will not be a federal offense.

No high crime or misdemeanor if no federal law was broken.

traditionalguy said...

Roberts' Court once again expands Federal presidential power. Once a Treaty is signed and ratified that ends American laws applying to that subject as long as a Tyrannical American President says so.

Presidential appointed EPA Gauleighters now trump Congress.

Richard Dolan said...

The majority opinion was a fun read, but not as tightly edited as the usual Roberts opinion. It was oddly repetitive, and relied overmuch on rhetoric to make a simple point (e.g., the vinegar and goldfish, the kitchen and carpet cleaners, etc.).

End of term-itis has set in already.

And in the Roberts vs. Scalia bout, it's hard not to agree with Roberts. No need to get into the thickets of the Necessary and Proper Clause when the case can be resolved as a matter of statutory interpretation.

Anonymous said...

Why are police allowed to use tear gas and pepper spray if chemical weapons are banned?

Bayoneteer said...

Constitutional interpretation of laws bears the same correlation to reality as the rules of my kids yu-gi-oh card game. Law is whatever those in power want or need it to be at any given moment. Who cares who is on what court? Those seeking to hang us can always find rope law or no fuckin law.

Anonymous said...

Federal pigs screwing with us. Nice to see the Supreme Court get it right.

David said...

Richard Dolan: "No need to get into the thickets of the Necessary and Proper Clause when the case can be resolved as a matter of statutory interpretation."

Unless of course the statutory interpretation is not consistent with the statute's express wording, and is grasped as a pretext to avoid an important constitutional issue.

That is Scalia's point, which you completely ignore.

tim maguire said...

The federal government has lately taken the habit of using the treaty power to greatly expand control over people's lives and choices. A shame Roberts has once again had a failure of nerve in the face of an important question.

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gerry said...

Roberts' Court once again expands Federal presidential power. Once a Treaty is signed and ratified that ends American laws applying to that subject as long as a Tyrannical American President says so.

I think you misunderstand. The decision rejected federal intrusion into a local law enforcement matter, and rejected the federal government's interpretation of the necessities for compliance with a treaty.