June 4th, 2014 – Will Bond Change the Federalism Dynamic?


bond140604In Bond v. United States, No. 12-158 (June 2, 2014), the Supreme Court sidestepped the key question – the scope of the Congress’s power to enact legislation under the Treaty Clause of the Constitution – in favor a frolic into the principles of federalism. Three justices concurred, arguing that the treaty question should be reached.  But for a number of people facing Federal criminal charges, the federalism aspects should be of great interest.

The Bond facts could easily have come from a dimestore novel. The defendant – who was a trained chemist – tried to poison her husband’s lover with toxic chemicals, which she spread on the mistress’s car, mailbox, and doorknob. Despite her best efforts, the attempted poisoning was a bust – the mistress sustained nothing more than a minor burn on one thumb despite something like 23 attempts. The wife was prosecuted under a federal law which was intended to implement an international convention on chemical weapons. Under the congressional statute, the toxic chemicals the wife used qualified as chemical weapons.

The principal question was whether Congress had exceeded its constitutional powers to implement a treaty.  But Chief Justice Roberts’ majority opinion addressed federalism instead.  Chief Justice Roberts notes that

our constitutional structure leaves local criminal activity primarily to the states.

Fair enough, but the chief justice then goes on to cite United States v. Lopez for the propositions that only the states have broad police powers, while the federal government is one of limited powers. He says “In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.” Quoting James Madison, Roberts also opines that the United States is a “compound republic” which “keeps power ‘divided between two distinct governments.’ ”

The opinion notes that interpreting the statue at issue to apply to the wife’s conduct “would ‘dramatically intrude[] upon traditional state criminal jurisdiction.’ ” Then, in another significant comment on federalism, the majority opinion holds that

these precedents make clear that is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute.

Chief Justice Roberts concludes that Pennsylvania state law was sufficient to prosecute the wife for her poisoning efforts – in fact, the Feds had stepped in only after Pennsylvania prosecutors declined to charge her for the botched poisoning – and that “the 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.”

These passages  could quite easily be incorporated into an opinion striking down congressional legislation enacted under the Commerce Clause or other authority, where that legislation impacts areas of the law traditionally falling within the realm of state sovereignty.  Possession of controlled substances, arson, even basic business fraud, all are equally chargeable under state law.  Money laundering is especially susceptible to such analysis, because using the proceeds of any theft offense, however pedestrian, to buy a money order, make a bank deposit, or even buy a car, can offend the money laundering statute.

Central passages from Chief Justice Roberts’ majority opinion in Bond can, as Justice Jackson once put it in Korematsu v. United States, “lie[] around like a loaded weapon” to be used in the next opinion undermining the Federal criminal code.

Words matter, and often have a life of their own beyond their immediate context.

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