Wednesday, November 6, 2013

Ms Bond Joins Mr. Holland In the History Books

One of the many odd things about Bond v. United States, argued yesterday before the Supreme Court is the radical character of the case. Over at the Originalism Blog Michael Ramsey has posted intelligent remarks and links to other originalist commentary; Senator Ted Cruz addressing the Heritage Foundation gave his learned opinion the other day; but by and large Bond's suit has been treated as a curiosity with no special importance--and it seemed plain at oral argument that at least six of the judges were sympathetic to Bond's argument.

The briefs and argument resembled a scholarly debate between rival theories of the Constitution. But Article III of the Constitution says that the justices may decide only particular "cases" or "controversies," and we have always understood that they were not supposed to issue legislative-style rules or doctrines. What is going on? Considered as a case or controversy, Ms Bond's appeal is settled by precedent, the famous case of Missouri v. Holland, but her advocates want to change all that, and a majority of the justices seem willing to listen to the new theories presented to them.

Considered on its facts, the case is not difficult. Bond tried to poison her neighbor and her neighbor's child, and came close to success. She was tried and convicted of a felony and sentenced to six years in prison. She does not deny the facts that were determined against her, nor does she claim that her conviction or her sentence were unfair. She is not asserting any right of her own, in the ordinary sense. The crime was committed in a suburb of Philadelphia, and Bond claims that the statute under which she was convicted infringes upon the sovereignty of the Commonwealth of Pennsylvania, and therefore was invalid as applied to her, and her conviction should be overturned as unconstitutional. In other words, she is asserting the rights of the state to be free from federal intrusion.

The case was argued by Paul Clement and Solicitor General Don Virrelli, who were antagonists in the challenge to the Affordable Care Act, and their presence alone signals the importance of the case--it is another round in the battle for states' rights, lately relabeled "sovereignty."

The claims put forward on behalf of Bond have some plausibility because the federal statute under which she was charged is the Chemical Weapons Convention Implementation Act, and it seems a reach to apply the language of an international treaty to the attack made by Bond on her neighbor and rival. Maybe the prosecution was a stretch, but local law enforcement declined to act, and the U.S. Attorney who brought the suit was applying a federal statute according to its terms. The prosecution was at most ill advised, but under existing case law it was not unconstitutional.

The attack on federal authority began with insistence that the suit was absurd, a patent overreach of federal authority, and much of the argument and commentary was devoted to finding a "middle ground." Only three of the justices seemed to support the Solicitor General's argument that the prosecution was proper and the result was unremarkable. As in the earlier contest over Obamacare, however, Virrelli was unable to respond persuasively to the claim that the federal government had unlimited power to revise the Constitution to suit the demands of a treaty. What then will happen to states' rights, the Chief Justice demands, if the President and the Senate adopt a treaty that allows them to replace all local law enforcement with federal prosecutions? Virrelli was able to respond only with the assertion, undoubtedly correct, that such a treaty would be politically impossible. But that hardly answers the claim that in theory, the federal government could fulfill the worst fantasies of the Right.

The other curious aspect of the case is that no one refers to the opinion in Missouri v. Holland, although that is what the suit aims at. In that case, the same arguments were advanced and rejected by the Supreme Court. The State of Missouri was offended in its dignity by the intrusion of Mr. Holland, a federal game warden, enforcing the federal Migratory Bird Treaty Act, in disregard of the state's traditional control over hunting, enshrined in the language of the Tenth Amendment. Justice Holmes, speaking for the Court, pointed out that the enforcement of treaty obligations was itself a part of the constitutional scheme, and necessarily infringed upon what would otherwise be state prerogatives:
It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits, therefore, to the treaty-making power, and that one such limit is that what an act of Congress could not do unaided, in derogation of the powers reserved to the States, a treaty cannot do. . . . It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with, but that a treaty followed by such an act could, and it is not lightly to be assumed that, in matters requiring national action, "a power which must belong to and somewhere reside in every civilized government" is not to be found. . . What was said . . . with regard to the powers of the States applies with equal force to the powers of the nation in cases where the States individually are incompetent to act. . . . Here, a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. . .We see nothing in the Constitution that compels the Government to sit by . . . . It is not sufficient to rely upon the States. The reliance is vain . . . . 
The Constitution, in short, already provides a principle that allows us to weigh the claims of the state against the federal government's necessary power. The federal government may act in matters in which the states individually are incompetent to act. The treaty against chemical weapons surely provides such a power, and it can reasonably be implemented through a statute that punished the use of toxic chemicals as a weapon. Reliance on the states is vain.