Carol Anne Bond v. United States, USSC No. 12-148 (June 2, 2014), reversing United States v. Bond, 681 F.3d 149 (3rd Cir. 2012); Scotusblog page (includes links to briefs and commentary)
Avoiding a constitutional question about the limits on Congress’s power to pass legislation implementing an international treaty, a majority of the Supreme Court narrowly construes a federal statute enacted after ratification of the Chemical Weapons Convention so that it does not cover the defendant’s conduct in this case. By limiting the statute’s reach, the Court’s construction will preclude federal prosecutors from using it to charge “a purely local crime[.]” (Slip op. at 2).
Bond tried to harm Haynes, her husband’s lover, by putting toxic substances on Haynes’s doorknobs and mailbox. For this conduct she was charged under 18 U.S.C. § 229, which bans the use of “chemical weapons.” Enacted to implement the Chemical Weapons Convention, the statutory language is, in the words of the lower court, strikingly broad, “as it turns each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.” 681 F.Ed at 154 n.7.
The very breadth of the statute, and its relationship to a treaty created to address war crimes and terrorism, leads the Court to doubt its applicability to Bond’s actions. (Slip op. at 1-3, 10). Because our constitutional structure generally leaves the definition of criminal activity to the states, one of the “background principles of construction” for federal statutes is that we should presume the statute does not upset the usual balance of federal and state power over crime unless Congress clearly expressed an intent to do so. (Slip op. at 11-14). In light of the purposes of the treaty § 229 is intended to implement, the Court concludes the statute is ambiguous:
In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States. … (Slip op. at 14).
Considering the statutory language itself, the Court says that “as a matter of natural meaning an educated user of English would not describe Bond’s crime as involving a ‘chemical weapon.’” (Slip op. at 15). Further, “[w]hen used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare.” (Id.). The chemicals Bond used “bear little resemblance to the deadly toxins” that are the focus of the treaty. (Id.). Nor is it apparent she was using them as a weapon, which typically is an instrument of combat, and “no speaker in natural parlance would describe Bond’s feud-driven act of spreading irritating chemicals on Haynes’s doorknob and mailbox as ‘combat.'” (Slip op. at 15-16). Thus:
This case is unusual, and our analysis is appropriately limited. Our disagreement with our colleagues reduces to whether section 229 is “utterly clear.” … We think it is not, given that the definition of “chemical weapon” in a particular case can reach beyond any normal notion of such a weapon, that the context from which the statute arose demonstrates a much more limited prohibition was intended, and that the most sweeping reading of the statute would fundamentally upset the Constitution’s balance between national and local power. This exceptional convergence of factors gives us serious reason to doubt the Government’s expansive reading of section 229, and calls for us to interpret the statute more narrowly.
About that disagreement between colleagues: Justice Scalia, joined by Justices Thomas and Alito (both of whom also write separately), concur in the judgment, though for very different reasons. They say § 229 clearly covers Bond’s conduct, but conclude the statute exceeds Congress’s power because, contrary to the “unreasoned and citation-less” ipse dixit in Missouri v. Holland, 252 U.S. 416 (1920), the Treaty Clause, Article II, §2, cl. 2, can’t be read together with the necessary and proper clause, Article I, §8, cl. 18, to empower Congress to regulate domestic behavior that would be outside Congress’s power absent a treaty. (Scalia, J., concurring, at 8-17).
Though the Court dodges a head-on confrontation with the constitutional issue in this case (described briefly in our post on the cert grant), one commentator thinks the majority’s approach shows the Court doubts the treaty power can reach “local” crimes like those committed by Bond. We’ll have to await another (curious, unusual) case to find out of sure.
Justice Scalia pointedly criticizes the majority’s statutory interpretation as “result-driven antitexualism….” (Scalia, J., concurring, at 3). He chides the majority for finding ambiguity based on the breadth of the language, and the consequences and apparent lack of necessity for such breadth (“Imagine what future courts can do with that judge-empowering principle: Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous!”); notes the novelty of elevating common meaning over statutory definitions (“Who in the world would have thought that a [statutory] definition is inoperative if it contradicts ordinary meaning?”); and points out the majority’s interpretation effectively revises the statute to prohibit the use of any chemical “of the sort that an ordinary person would associate with instruments of chemical warfare.” (“Thanks to the Court’s revisions, the Act, which before was merely broad, is now broad and unintelligible.”) (Id. at 5, 7, 8).
Though light on credible statutory interpretation, the majority opinion begins with reference to the catalyst for the Chemical Weapons Convention—namely, the horrors of chemical warfare, “vividly captured by John Singer Sargent in his 1919 painting Gassed. … [which] reflects the devastation that Sargent witnessed in the aftermath of the Second Battle of Arras during World War I.” (Slip op. at 1). (Wilfred Owen’s Dulce et Decorum Est tells the same story in verse, with graphic detail and (it should be said) an overt anti-war message.)