Bond v. United States

Risa KaufmanColumbia Law School Human Rights Institute

“The question presented by the case is whether the [Chemical Weapons Convention] Implementation Act . . . reaches a purely local crime: an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

– 134 S. Ct. 2077, 2083 (2014).

Chemical Weapons Convention Implementation Act

18 U.S.C. §229(a)(1): Forbids any person knowingly “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”

Questions before the Court:1. Statutory: does Bond’s “purely local crime”

fall outside the scope of the Act?2. Constitutional: If Bond’s actions are covered

by the Act, does the Act violate the 10th Amendment by touching on traditionally local concerns?

“If the treaty is valid there can be no dispute about the validity of the statute” that implements it “as a necessary and proper means to execute the powers of the Government.”– Missouri v. Holland, 252 U.S. 416, 432 (1920).

“[I]t is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute.”

– 134 S. Ct. at 2090.

“[I]n 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.”

– 134 S. Ct. at 2090.

“We are reluctant to ignore the ordinary meaning of ‘chemical weapon’ when doing so would transform a statute passed to implement the international Convention on Chemical Weapons into one that also makes it a federal offense to poison goldfish.”

– 134 S. Ct. at 2091.

Result:

• Bond’s conviction reversed on statutory grounds

• Court avoided Constitutional question of whether the Act itself violated federalism limits

“Since the Act is clear, the real question this case presents is whether the Act is constitutional as applied to petitioner. An unreasoned and citation-less sentence from our opinion in Missouri v. Holland . . . purported to furnish the answer. . . . Petitioner and her amici press us to consider whether there is anything to this ipse dixit. The Constitution’s text and structure show that there is not.”

– 134 S. Ct. at 2098 (Scalia, J., concurring).

“Although the parties have not challenged the constitutionality of the particular treaty at issue here, in an appropriate case I believe the Court should address the scope of the Treaty Power as it was originally understood.”

– 134 S. Ct. at 2103 (Thomas, J. concurring).

Bond score card

• 9 Justices reverse Bond’s conviction• 2 Justices would have limited Congress’

authority to enact implementing legislation (Scalia and Thomas)

• 3 Justices would have imposed limits on the Treaty Power (Thomas, Scalia, Alito)

• No Justice wrote separately to defend Missouri v. Holland or an unlimited Treaty Power

“[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to support that Congress . . . thought otherwise.”

– 134 S. Ct. at 2093.

What are the human rights implications of Bond?

1. “Green light” for human rights treaty ratification?

(Don’t worry, Court won’t let Congress overstep. . . )

“Today’s decision in the Bond case removes any fears that the [Disabilities] Convention could ever be used to expand federal authority beyond the limits of the Constitution, undermine state sovereignty, or allow lawsuits to be filed in U.S. courts.”

Sen. Robert Mendez, June 2, 2014

2. Underscores the importance of state and local government.

Q: Are the Constitutional issues resolved?A: No, but . . .

The bottom line:

• The Court avoided the Constitutional questions of the scope of the Treaty Power and Congress’ authority to implement treaties pursuant to the N&P clause.

• Nevertheless, the decision is a strong federalism decision which advocates can point to as a “green light” to move forward with ratification of human rights treaties.

• State and local gov’t plays a key role in implementing U.S. treaty obligations.