Monday’s unanimous (on the result) Supreme Court decision in Bond v. United States uses federalism principles to rule against the federal prosecution of Carol Ann Bond, who attempted to injure a romantic rival with toxic chemicals.  Briefly: The majority (Chief Justice Roberts, writing for Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan) thought the statute in question — implementing the Chemical Weapons Convention — did not reach Bond’s conduct.  The concurrences (Scalia, Thomas, Alito) thought the statute reached the conduct, but the statute was unconstitutional, either because it exceeded Congress’ power to implement a treaty, or because the treaty itself was unconstitutional.  (Josh Blackman has extended excerpts and commentary hereherehere andhere.)

Notably, while differing in approach, all Justices seemed to think the Bond prosecution raised serious federalism concerns.  The majority reached its conclusion as to the statute’s meaning by applying a rule of interpretation that a statute should not be read to undermine federalism values unless its intent was clear.  (As an aside, the Court’s authority to invent such a rule seems dubious in the extreme: at minimum, it seems a questionable assumption about congressional preferences).  The concurrences more dramatically thought allowing a federal prosecution, even on the basis of a clearly worded statute, would unconstitutionally upset fundamental principles of federalism.

Much could be said about Bond, but I’ll start with this: Bond purchased some of her chemicals in interstate commerce.  The Court’s decision is framed as a question about the treaty power (implementation of the Chemical Weapons Convention).  Apparently the government waived or abandoned its commerce clause argument in the lower courts.  But everything the Justices say about the threat to the federalism structure from treaty implementation is overwrought (to put it mildly) if Bond could have been prosecuted under Congress’ interstate commerce power.

And the U.S. government does claim (despite its apparent waiver in Bond) that it has power to regulate the end use of goods that at some point move in interstate commerce.  This is, for example, one of the government’s main arguments in the Amish beard-cutting case I’ve discussed several times before.  Because the defendants in that case used implements that had at one point travelled in interstate commerce, the commerce power (the government argues, and the district court held) allows federal prosecution for a simple local assault.

Either that conclusion is wrong, or Bond is a very silly case.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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