On Monday, the Supreme Court held that the federal Chemical Weapons Convention Implementation Act did not apply to a Pennsylvania woman’s attempted use of mild toxins to cause a skin rash on a romantic rival. By relying on principles of statutory construction, that ruling in Bond v. United States ducked a serious question about the scope of congressional power to implement treaties. In so doing, however, the Court appears to have raised other important questions.
The Ruling in Bond
In 1997, the Senate ratified the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, a multilateral international treaty that built on the 1925 Geneva Protocol. The Chemical Weapons Convention (as it is commonly known) calls on state parties to refrain from developing, stockpiling, or using chemical weapons, but it also calls on them to prevent such acts by private parties within their territories. Because the Convention does not directly apply within domestic law—in lawyer’s jargon, it is not “self-executing”—Congress enacted the Implementation Act to make it effective within the United States.
Paradigm cases of chemical weapons are relatively easy to identify. In his majority opinion in Bond, Chief Justice Roberts points to the large-scale use of mustard gas and other toxins in World War I, as well as to Iraq’s use of nerve gas and mustard gas against Iranian soldiers in the 1980s. He also mentions terrorist incidents, like the 1995 sarin gas attack on Japanese subway passengers.
Given the diverse circumstances and the breadth of toxic agents that may be involved in chemical attacks, both the Convention and the Implementation Act provide a very inclusive definition of chemical weapons. Subject to a number of exceptions, the operative language applies to “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”
Taken literally, that language appears to cover the criminal act committed by Ms. Bond. After learning that her husband had cheated on her with erstwhile friend Myrlinda Haynes (leading to the latter’s pregnancy), Bond repeatedly smeared small quantities of potassium dichromate (a chemical used in printing photographs) and an arsenic-based compound on the mailbox, car door, and doorknob of the home of Haynes. State and local authorities did not prosecute Bond for those acts, but federal authorities did, relying on the Implementation Act.
Writing for a six-Justice majority that included himself, Justice Kennedy, and the Court’s four most liberal members, Chief Justice Roberts recognized that Bond’s “conduct is serious and unacceptable,” but he nonetheless concluded that it was a matter for state jurisdiction. He explained that Congress must give “a clear indication” of its intent “to reach purely local crimes,” and that given the overall context, the Implementation Act was not sufficiently clear that it covered acts like Bond’s.
The Treaty Power Issue the Court Ducked in Bond
Although the result in Bond was unanimous, three Justices offered a different rationale. Justices Scalia, Thomas, and Alito all thought that the Implementation Act was clear that it covered Bond’s conduct. For them, however, that was just the beginning of the analysis. In their view, the Implementation Act—at least as applied to circumstances such as Bond’s—is unconstitutional.
To understand the reasoning of Justices Scalia, Thomas, and Alito, it helps to go back to a 1920 opinion by Justice Oliver Wendell Holmes, Jr. In Missouri v. Holland, the Court upheld a federal statute that was enacted to enforce a treaty with Canada restricting the killing of certain migratory birds. Even though it was assumed that none of the powers enumerated in Article I of the Constitution authorized Congress to enact the statute, the Court said that the law was valid because the Treaty Power is distinct.
Ever since, commentators have puzzled over the implications of that statement. As Justice Scalia explained in his separate opinion in Bond, the language in Holland appears to give Congress a means of circumventing the limits of its enumerated powers. Even though Congress cannot forbid firearms in school zones under the Commerce Power (as the Court said it cannot in United States v. Lopez), pursuant to Holland, it would seem that Congress could give itself that power simply by entering into a treaty with some foreign sovereign. (Justice Scalia gave Latvia as his example.)
Accordingly, Justice Scalia (joined by Justice Thomas and in part by Justice Alito) would have overruled Holland to the extent that it is thought to permit Congress to enact legislation implementing a treaty where Congress would lack the power to enact that legislation absent the treaty.
Meanwhile, Justice Thomas (joined by Justice Scalia and in part by Justice Alito) offered yet another reason for thinking that the Implementation Act could not be validly applied to Bond. He said that the President and the Senate lacked the authority to enter into the Convention itself, insofar as it goes beyond international matters. This view is potentially very far-reaching. Especially since World War II, international law—including treaties to which the United States is a party—has been understood as legitimately addressing not only inter-sovereign relations and reciprocal treatment of foreign nationals, but also the way in which nation-states treat their own citizens and subjects. United States accession to such landmark treaties as the International Covenant on Civil and Political Rights and the Convention on the Prevention and Punishment of the Crime of Genocide could be in jeopardy under the view espoused by Justice Thomas.
Is the Majority Opinion in Bond a Time Bomb?
The majority opinion in Bond looks much less far-reaching than the concurrence in the judgment of either Justice Scalia or Justice Thomas. After all, the Chief Justice invokes various legal principles that aim at modesty—including the principle that courts should avoid deciding difficult constitutional questions if they can resolve a case simply as a matter of statutory construction. Nonetheless, in practice, the argument offered in the majority opinion of Chief Justice Roberts may still end up imposing a very substantial limit on the power of the federal government.
Although the Bond majority invokes the principle of constitutional avoidance so that it can duck the Treaty power questions, the opinion announces a presumption of statutory construction that does not appear to be limited to statutes enacted under the Treaty power. If taken seriously in future cases, that presumption could do substantial mischief.
After all, the U.S. Code is filled with federal laws that regulate in areas in which the states also regulate—and since roughly the middle of the nineteenth century, that has been understood as unexceptional. Congress may regulate interstate or foreign commerce, even though the particular federal law covers a subject that may also fall within what the Bond majority opinion calls the “traditional” jurisdiction of the states.
Does Bond unsettle that longstanding wisdom? Will acts of Congress that appear to regulate in areas of traditional state jurisdiction now be held to have limited application because they contain an insufficiently clear statement of congressional intent?
It is extremely doubtful that any of the four relatively liberal Justices who signed onto the Chief Justice’s majority opinion in Bond believed that they were agreeing to a new freestanding plain-statement rule that could substantially restrict congressional regulatory authority. And there are statements in the opinion that give some reassurance that the principles announced therein are confined to this “unusual” case.
Yet legal principles can have a life of their own. This week, the principle of statutory construction announced in Bond was used to avoid a constitutional holding that could gut congressional power under the Treaty Clause. But in some future case, a more conservative majority could invoke Bond as a means of preventing the effective exercise of congressional power under the Commerce Clause.
According to the Court, Ms. Bond did not use a chemical weapon. But in writing the Bond majority opinion in the way that he did, Chief Justice Roberts may have planted a time bomb.
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