Bench Memos

Bond v. United States: Third Circuit Reversed Because Federalism

The Supreme Court’s decision in Bond v. United States is the right result, but for the wrong reason. (Carrie Severino’s commentary on the oral arguments is here; the Judicial Education Project’s amicus brief is here.) The Third Circuit had upheld Bond’s conviction for violating a federal statute (that executed a chemical weapons treaty) by wiping toxic chemicals on a romantic rival’s doorknob, among other places. The majority, with Chief Justice Roberts writing, reversed and held that the federal statute did not reach the defendant’s conduct because Congress had not made clear that the statute could reach local conduct. Under a new principle of statutory interpretation (might we call it “interpretive federalism”?), the statute was held not to apply to simple assault, which had already been prohibited by state law.

Although the majority did not reach the constitutional question, it properly reaffirmed the role of the states in prosecuting crimes, like this one, that are “purely local.” The Court was correct that this dispute is provincial: it belongs on daytime TV, not in federal court. As such, the majority’s decision in Bond is a strong reminder to Congress that its powers are limited by the Constitution’s structure.

But even though the Court’s decision struck the right balance of federal and state powers in this case, it should have derived that balance from the Constitution’s text, not some vague new principle of statutory interpretation. The right answer, had the majority been willing to take a more courageous road, would have been to declare the statute unconstitutional. Justice Scalia’s opinion concurring in the judgment rightly notes the majority’s “antitextualism” in dodging the plain reach of the statute to avoid the constitutional issue:

Inverting Bass and Jones, it starts with the federalism-related consequences of the statute’s meaning and reasons backwards, holding that, if the statute has what the Court considers a disruptive effect on the “federal-state balance” of criminal jurisdiction, that effect causes the text, even if clear on its face, to be ambiguous. Just ponder what the Court says: “[The Act’s] ambiguity derives from the improbably broad reach of the key statutory definition . . . the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so . . . .” (emphasis added). Imagine what future courts can do with that judge-empowering principle: Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous! (citations omitted)

The statute was as broad as could be, but as Justice Scalia pointed out, the federalism-ish interpretive principle used by the majority to narrow it will “bedevil” the courts for years to come as they try to figure out which statutes have sufficient indicia of federal intent to rebut the presumption that a statute doesn’t interfere with the states:

But there is nothing either (1) realistic or (2) well known about the presumption the Court shoves down the throat of a resisting statute today. Who in the world would have thought that a definition is inoperative if it contradicts ordinary meaning? When this statute was enacted, there was not yet a “Bond presumption” to that effect—though presumably Congress will have to take account of the Bond presumption in the future, perhaps by adding at the end of all its definitions that depart from ordinary connotation “and we really mean it.”

Moreover, as Justice Thomas observed, the clear history and text of the Constitution’s Treaty Clause shows that it only reaches matters of international, not domestic, concern:

Yet to interpret the Treaty Power as extending to every conceivable domestic subject matter—even matters with­out any nexus to foreign relations—would destroy the basic constitutional distinction between domestic and foreign powers. It would also lodge in the Federal Government the potential for a “police power” over all aspects of American life. A treaty-based power of that magnitude—no less than a plenary power of legislation—would threaten the liberties that derive from the diffusion of sovereign power. And a treaty-based police power would pose an even greater threat when exercised through a self-executing treaty because it would circumvent the role of the House of Rep­resentatives in the legislative process. (citations and quotations omitted)

For these reasons, as Justice Alito noted, this criminal statute was not a necessary and proper exercise of the Treaty Power.

As the 2016 presidential campaign inches toward us, it’s a good time to be thinking about what sort of nominees the potential candidates will appoint. The Chief’s opinion in Bond is a reminder that it’s not enough to have judicial nominees who can state a proper judicial philosophy; they must also have the courage to put it into practice. Will the nominee appoint good-old-boy loyalists? Will he appoint well-credentialed professionals with no track record? Or will he look for nominees who are truly committed to the proper use of traditional legal methods?

Anyone can parrot right answers about how to decide cases, but it takes intestinal fortitude to actually decide them that way.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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