Bond's Breaches

Bond v. United States (1) illustrates a new maxim for today's Supreme Court: hard cases make no law at all. To be sure, Bond's bottom line was not particularly difficult. Few outside the Eastern District of Pennsylvania had great enthusiasm for using the Chemical Weapons Convention Implementation Act (2) (Chemical Weapons Convention or Convention) as a basis for prosecuting Carol Bond, who had used chemicals (some stolen from work, some purchased on Amazon.com) in an attempted revenge on her husband's lover. (3) And there was evident reluctance in the judiciary about turning this tabloid-ready case--which the Chief Justice, dubiously, called "unremarkable" (4)--into a precedent-setting referendum on the scope of the treaty power. Initially, the Third Circuit held, unconvincingly, that Bond lacked standing to raise a constitutional challenge. (5) After the Supreme Court reversed, (6) the Third Circuit held against Bond on the merits, (7) and the Supreme Court agonized as to whether it should take up the case again. (8) But the Supreme Court ultimately did take the case, and once it did, it became hard to decide--at least in terms of the rationale. Although the Justices all favored reversal and dismissal of the indictment, they wound up providing little clarity on the larger questions the case raised. Chief Justice Roberts, for the majority, attempted to avoid any constitutional issue by holding that Congress did not intend for the Act to apply. (9) Justices Scalia (10) and Thomas, (11) writing separately, would instead have endorsed two significant constitutional objections to the Act. But only Justice Thomas's objection attracted the support of a third Justice (Justice Alito, who wrote briefly in support). (12) If, as the more time-honored homily goes, hard cases otherwise make bad law, making little bad law was hardly the worst outcome. Nevertheless, what the Justices proffered was pretty bad. As explained in Part II, Bond's opinions mused about what they considered a potential constitutional breach: the gap between the national government's typical authority over domestic matters, on the one hand, and the domestic authority it might assert while implementing treaties, on the other. If tolerated, the basic argument went, such a gap would breach the constitutional commitment to a national government of limited authority. Justice Scalia and Justice Thomas, moreover, voiced concern that the federal government would actively exploit that gap. The problem, on their view, was not merely that treaties, like statutes, might occasionally breach a reserve of state authority; rather, treaties would be differentially exploited by the national government precisely for that reason. Each of the Court's opinions tried to establish a means by which the judiciary could prevent that from happening. The real problem was that none of the nine Justices offered any counter-narrative. The majority did say that the statute in question was not a sufficiently overt attempt to trench on state prerogatives, but that was cold comfort: Chief Justice Roberts's exertions at statutory construction had little broader appeal (Justice Scalia, who did nothing to hide his distaste, reasonably doubted that other statutes would be subjected to such "gruesome surgery"), (13) and also offered little hope of aligning the international and domestic authority of the United States. As Part III indicates, the Court should have acknowledged the other forms of breach it was ratifying. The most obvious is the risk of jeopardizing U.S. compliance with its international obligations, contrary to constitutional principles designed to reduce that risk. By focusing on the prospect that the national government will exploit international opportunities to expand its authority--or at best, per the Chief Justice, that Congress legislates with the same attitude toward state and local authority that it always does--the opinions failed to provide the kind of comprehensive account that could guide the political branches and future courts. …