Supreme Court Limits Holding in Bond, Not Reaching Constitutional Treaty Implementation Authority

On June 2, 2014, the U.S. Supreme Court handed down its second decision in Bond v. United States.[1]  The Court unanimously reversed the conviction of Carol Anne Bond under the Chemical Weapons Convention Implementation Act (Act).[2]  In an opinion written by Chief Justice Roberts expressing the view of six Justices, the Court held that,  although the statutory language on its face covered Bond’s assaults by toxic chemicals on another person, the crime in question was purely local and normally subject to state and not federal jurisdiction.  The Court construed the Act in light of a presumption that Congress would not intrude on a state’s criminal jurisdiction over such a crime without explicitly saying so.  The Court did not decide whether the Chemical Weapons Convention (CWC)[3] itself required parties to enact legislation covering Bond’s assaults, indicating that if it does, the obligations relating to purely local crimes could be implemented by state statutes. 

In reaching its decision, the Court avoided addressing the continued vitality of Justice Holmes’s holding in Missouri v. Holland that:

[B]y Article 2, Section 2, [of the U.S. Constitution] the power to make treaties is delegated expressly, and by Article 6 [of the Constitution] treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are declared the supreme law of the land. If the treaty is valid there can be no dispute about the validity of the statute under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.[4]

However, in concurring opinions, Justices Scalia, Thomas and Alito, argued that the Act clearly covered Bond’s use of chemicals; that the Court should have reached the constitutional question and held that the necessary and proper clause did not provide a constitutional basis for the Act’s application to a local crime; that although not at issue in the current case, the Court should review and limit the scope of the treaty power; and that the CWC exceeds the scope of the treaty power if it can be read to cover a purely local crime, and that the Act thus could not be necessary and proper to implement the treaty.

Background

The Bond case involves unusual facts that were reviewed in a previous article in this Insight series.[5]  In brief, Carol Anne Bond discovered that her friend Myrlinda Haynes had become pregnant after an affair with Bond’s husband.  Bond then engaged in twenty-four attempts in Pennsylvania to poison Haynes with two different toxic chemicals that can be lethal in small amounts by spreading the chemical powders on Haynes’ house door handle and car door handle.  None of these succeeded in causing Haynes serious injury since she noticed the chemicals.  After Haynes was unable to persuade local police to do anything about these attempts, she contacted U.S. postal inspectors, who captured on video Bond stealing Haynes’ mail and placing one of the chemicals on Haynes’ car muffler.  A grand jury charged Bond with two counts of possessing and using chemical weapons in violation of the Act.  Bond pleaded guilty but reserved her right to appeal.  She argued that only rogue states and terrorist acts were covered by the Act and that by covering ordinary domestic crimes, the Act usurped powers reserved to the states. 

In the case’s first trip to the U.S. Supreme Court, the Court held that Bond had standing to raise this Tenth Amendment claim.[6]  When the case went back to the Third Circuit, the Court of Appeals upheld Bond’s conviction, finding that the CWC was a valid treaty and that the Act was rationally related to it.[7]  Bond sought certiorari, which the Supreme Court granted.  The case now raised the important question of whether Missouri v. Holland continued to be good law.

The Court’s Opinion

After describing the horrors of gas warfare and the CWC’s objective of expanding the prohibition on chemical weapons beyond state actors in warfare, the Court reviewed the treaty’s requirement that each state party enact legislation in accordance with its constitutional processes to prohibit natural and legal persons from possessing or using chemical weapons.  The CWC defines “chemical weapons” broadly as including any toxic chemical except where intended for purposes not prohibited by the CWC.  A "œtoxic chemical" is defined as any chemical that can cause death, temporary incapacitation or permanent harm to humans or animals.  The CWC lists specifically which purposes are considered not prohibited.  The Court noted that the Act closely tracks the CWC in prohibiting any person from knowingly possessing or using chemical weapons, i.e., toxic chemicals, except for purposes not prohibited.  The Act lists the purposes not prohibited,[8] and Bond’s assault on Haynes does not fall within that list. 

The Court did not reach the constitutional question of whether the Act was a “necessary and proper” implementation of the CWC, noting that the Court will normally not decide a constitutional question if there is some other ground upon which to dispose of a case.  Instead, the Court construed the Act as not covering Bond’s assault.  It reasoned that Congress legislates against the backdrop of “unexpressed presumptions,” such as the presumptions against extraterritorial application of federal statutes[9] and the presumption that a culpable mental state is necessary for a criminal conviction.[10]  The Court found the Act ambiguous because of its improbably broad statutory definitions and therefore found it justified to apply an unexpressed background presumption to determine the Act’s scope.[11]  The Court doubted there was any reason to think that the CWC was intended to cover anything like Bond’s common law assaults.  It said that, reading the Act as consistent with the background presumption of federalism inherent in the U.S. constitutional structure, Congress should be presumed to have covered only crimes of the nature of assassination, terrorism, and acts with the potential to cause mass suffering.  The Court assumed that, even if the CWC itself does cover purely local crimes, Congress left that part of implementation of U.S. international obligations to the states under state legislation.

The Court found support for its construction of the Act in the natural meaning of the term “chemical weapons.”  Looking to dictionaries, it found that this term implies offensive or defensive combat.  It said it would insist on a “clear indication” that Congress intended to reach purely local conduct before interpreting the statute’s expansive language to intrude on the police powers of a state.  The Court said using the same chemicals as at issue in this case to poison a city’s water supply might be covered, but that Bond’s actions—“an act of revenge born out of romantic jealously, meant to cause discomfort, that produced nothing more than a minor thumb burn” —were not.  The Court said that if the Act were construed to cover such crimes it might also be a federal crime to poison goldfish by dropping vinegar in their bowl.

The Court said that it was clear that state criminal laws already covered such purely local assaults with toxic chemicals and that the fact that Pennsylvania authorities declined to prosecute Bond for her assaults against Haynes could be seen as a normal exercise of prosecutorial discretion.  The Court cited the Solicitor General’s comment during oral argument that he doubted that the failure to prosecute Bond would give rise to an international incident.[12]

The Court concluded that if the Act reached Bond’s conduct it would mark a “dramatic departure” from the U.S. constitutional structure and a “serious reallocation of criminal enforcement jurisdiction between the Federal Government and the States.”  It judged that the global need to prevent chemical warfare did not require the federal government to reach into the “kitchen cupboard or to treat a local assault with a chemical irritant as deployment of a chemical weapon.” “Absent a clear statement of that purpose,” the Court said it would not “presume Congress to have authorized such a stark intrusion into traditional state authority.”[13]

The Concurring Opinions  

Justice Scalia, joined by Justices Thomas and Alito in his discussion of the Act, wrote that it was clear beyond doubt that the Act covers what Bond did—that the statute is clear and the Court had no authority to amend it—and that the Court thus “shirks its job” by refusing to decide whether the Act’s coverage of what Bond did was constitutional. He said the Court’s opinion was “judge-empowering” in that it allows judges to disregard statutory definitions if they believe the ordinary meaning of the defined term is different.  He asked whether legislation that is clear on its face now needs an additional clause saying “and we really mean it.”   Presumptions, he wrote, do not serve to rewrite clear text and the “improbable” broadness of a text does not make it ambiguous.  Justice Scalia argued that application of the federalism presumption turned a broad statute into an ambiguous one, since one can no longer tell what crimes it covers.

On the constitutional issue, Justice Scalia argued that the treaty power concerns “making” treaties, not implementing them.  The normal practice is for the President only to ratify a non-self-executing treaty after implementing legislation has been enacted.  A treaty is “made” when the President ratifies it and it enters into force for the United States.  The pre-ratification period, including the enactment of implementing legislation, is the period during which the treaty is in the “making.”  However, Justice Scalia appears to believe implementing legislation is normally enacted after ratification—as was exceptionally in the case of the CCW—and thus argued that the “necessary and proper” clause, which deals with the execution of the other powers in the constitution, has no relevance to making treaties.  He asserted that in the Missouri v. Holland passage quoted above, proponents of unlimited congressional power had found a “loophole” for a “vast expansion” that places Congress “only one step away from acquiring general police power.”[14]

Justice Thomas, joined by Justices Scalia and Alito, noted that the CWC itself was not at issue in the current case, but said he believed that there are limits to the treaty power and that the Court should define those limits.  In his review of history and precedent, he said that the original understanding was that the treaty power pertained to the regulation of intercourse with foreign nations and external events.  He contrasted the Second Restatement of the Foreign Relations Law of the United States, which said a treaty “must relate to the external concerns of the nation as distinguished from matters of a purely internal nature,”[15] with the Restatement (Third), which contained a comment that “[c]ontrary to what was once suggested, the Constitution does not require an international agreement deal only with matters of ‘international concern.’”[16]  He wrote that the former view, not the latter, was that of the Framers.  He said he would draw a line that respects the original understanding of the treaty power, but admitted that “the distinction between matters of international intercourse and matters of purely domestic regulation may not be obvious in all cases.”[17]

In a short concurring opinion, Justice Alito argued that if the CWC in fact obligates the United States to criminalize conduct of the sort at issue in the case, the CWC would exceed the scope of the treaty power and that section 229 of the Act thus could not be regarded as necessary and proper implementation.[18]

The Import of the Opinion

The six Justices who joined in the Court’s opinion found a way to reverse Bond’s conviction while avoiding the constitutional question of whether the Act was a necessary and proper implementation of the broad provisions of the CWC.  This outcome is not surprising.  One of the questions the Court listed as presented when it granted certiorari was whether the Act could be interpreted not to reach “ordinary poisoning” cases.[19]

The implications of overruling Missouri v. Holland, which has been cited and upheld in cases since 1920, would have been serious.[20]  The United States and other amici argued in support of the rule in that case.  Had Holland been overturned, the ability of the United States to implement many current and future treaties would have been in question.  In the era since the adoption of the UN Charter, an increasing number of subjects that previously were considered to be purely domestic have become matters of international intercourse.

To reverse Bond’s conviction and yet avoid the question of whether the constitution imposes limits on the Congress’ authority to enact legislation to implement a valid treaty, the Court had to find that a statute that appeared to be clear on its face was in fact ambiguous (because it regarded the Act’s reach as “improbable”), had to adopt a “natural” meaning from a dictionary for a term (“weapon”) that was defined differently in the statute, and had to apply a presumption that legislation is expected to respect the traditional structure of federalism unless it clearly says otherwise.

The Court did not make a definitive judgment on whether the CWC covered Bond’s poisoning attempts, but said that, if it does cover those attempts, compliance with those U.S. obligations under the CWC had been left to Pennsylvania.  The Bond opinion shows that, as in other recent cases, the Supreme Court is willing to rely on the states to implement obligations under non-self-executing treaties.  In Medellín v. Texas,[21] the Court found that the United States had an international legal obligation under the Vienna Convention on Consular Relations to provide consular notification but found that obligations under this Convention and its Optional Protocol on Settlement of Disputes were not self-executing, and thus left compliance to the states, which frequently did not comply.  In Bond, the Court was not concerned that Pennsylvania had chosen not to prosecute Bond’s offenses under its law.

New ambiguities were introduced as to what the Act really covers, since the Court stated that if the crime is serious enough (even if it is local) it might be covered.  Perhaps this will not be a major problem in the case of the CWC.  The Court noted that the Bond case is unusual and curious, and the result may be tied to its unique facts.  Local prosecutors will normally have an interest in prosecuting local assaults with toxic chemicals and federal prosecutors will presumably step in when the case involves terrorism or potentially serious harm to many, meeting the Bond threshold.   If this occurs, the ambiguities in the scope of the Act created by the Court should not cause major difficulties for the U.S. implementation of its CWC obligations.  Yet, whether a crime involves terrorism or is considered serious is often subject to argument.

It is not clear at this point what the Bond decision means for the implementation of other non-self-executing treaties for which implementing legislation has been enacted.  Some of the treaties dealing with international terrorism cover what might be considered a local offense.  For example, the International Convention Against the Taking of Hostages requires states party to criminalize attempts to commit an act of hostage-taking, and hostage-taking is broadly defined.[22]  The application of federal implementing legislation to a purely local attempted kidnapping was previously challenged on similar constitutional grounds as in Bond but that challenge was not sustained.[23]  Would the Court now hold that that convention’s implementing legislation did not cover a local hostage-taking?

The current U.S. practice with respect to many human rights treaties is to make a so-called “federalism reservation” indicating that, with respect to matters traditionally covered by state and local law, the United States will implement its treaty obligations through such laws.[24]  This is but one example of executive branch reluctance in recent years to press for federal treaty implementation in areas that raise potential federalism concerns.  In the private international law field, for example, the executive branch has not to date pursued federal implementing legislation for a number of conventions where it could argue that the rule in Missouri v. Holland permitted federal implementation.[25]  These positions likely derive in good part from concerns expressed by some members of Congress, and by the Uniform Law Commission, states and some in the academic community; and in part from the inability to obtain advice and consent in the Senate to treaties in recent years if there is any objection coming from any avenue.  In light of such reservations to treaties and reluctance on the part of the executive branch, the need to apply a “federalism presumption” to scale back implementing federal legislation may not often arise and the continued vitality of the holding in Missouri v. Holland may not be tested.  But, as noted, this approach leaves important components of compliance with U.S. international treaty obligations to the discretion of the fifty states, potentially making the United States a less reliable international treaty partner. 

About the Author: Ronald J. Bettauer, an ASIL member, is a visiting scholar at George Washington University Law School and a former Deputy Legal Adviser at the U.S. Department of State.