Chief Justice Roberts’ majority opinion in Bond v. United States has been sharply criticized (see here and here), so I’ll say few words partially in its favor. The case has seemed odd from the beginning because the federal statute at issue implements the Chemical Weapons Convention and (as the majority says) the local misuse of household chemicals does not seem the type of activity that is likely to implicate an international treaty.Details
Chief Justice Roberts Again Rewrites Law, Avoids Duty to Hold Government’s Feet to the Constitutional Fire
Bond was a case about the scope of the treaty power—can Congress do something pursuant to a treaty that it can’t otherwise do?—and yet the majority opinion avoided that discussion altogether in the name of a faux judicial minimalism.Details
In sum, there are at least two ways the Court in Bond can accommodate federalism without undermining national foreign policy. It can construe ambiguous treaties not to reach purely local conduct. And it can require Congress to make a plausible showing that federal regulation of local conduct is needed to prevent material breach of treaty obligations. Either approach would allow Bond to win the case without undermining national treaty power.Details
In noting the principal amicus briefs in Bond v. United States, I overlooked this one on behalf of Chemical Weapons Convention Negotiators and Experts. As described in this news release from Indiana University: In the brief, the arms control experts support the U.S. government’s position that, properly interpreted, the treaty requires states parties, including the United States, to apply its prohibitions on…Details
by Amanda Frost, SCOTUSblog
Bond v. United States is back before the U.S. Supreme Court, and this time it raises a question that has long interested academics: What are the limits on Congress’s power to implement treaties? Missouri v. Holland, decided in 1920, held that Congress could enact legislation implementing a treaty even if such legislation was otherwise outside the scope of its Article I, Section 8 authority. The decision is now canonical, and it has been widely accepted by most academics and followed by courts. Then, in a 2005 article in the Harvard Law Review, Professor Nicholas Quinn Rosenkranz challenged Missouri v. Holland’s rationale and asserted that it should be overruled. His arguments are now front and center before the Court in Bond.
The facts of Bond are unusually colorful. After Carol Anne Bond’s husband had an affair, Mrs. Bond sought revenge by sprinkling toxic chemicals around the car and mailbox owned by the woman involved. Prosecutors charged her with violating a federal statute implementing the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (also known as the “Chemical Weapons Convention”), to which the United States is a signatory. Mrs. Bond argued that Congress lacked the authority to criminalize her conduct, asserting that the statute is a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.”Details