"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.