Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
Yesterday, the Supreme Court heard oral argument in Bond v. United States. Mrs. Bond had smeared a toxic chemical on a romantic rival’s doorknob and mailbox, resulting in a thumb burn. She was federally prosecuted for violating a federal statute that implements the international Chemical Weapons Convention. The statute is broad indeed; as Justice Alito noted in an earlier round of litigation, it makes poisoning a goldfish with vinegar a federal crime. Earlier coverage is here.
After the argument, it’s possible that the case may decide some very large constitutional questions, thanks in no small part to the government’s breathtakingly aggressive stance. The key question is whether the feds can mow constitutional federalism barriers by treaty and implementing legislation. Solicitor General Verrilli’s answer was an emphatic “yes.” Not a good idea: excerpts from the transcript (which is here) convey the justices’ incredulity.
Chief Justice Roberts started the SG off with a hypothetical international convention that would abrogate federalism wholesale. The SG responded:
[I]t seems unimaginable that a convention of that kind would be ratified by two-thirds of the Senate, which it would have to be.
JUSTICE KENNEDY: It also seems unimaginable that you would bring this prosecution. But let’s leave that.
Petitioner’s counsel (Paul Clement) had proffered various ways of reading the implementing legislation so as to avoid federalism problems attendant to the de facto conferral of a general federal police power. General Verrilli responded, amazingly, that no such lines may be drawn by the Court. That maneuver brought out the best in Justice Breyer, now sounding like a nineteenth-century jurist:
JUSTICE BREYER: We either have to draw lines or we have to say, well, this [law] encompasses the poison potato, the poisoned goldfish, the small boy with the candle, the–for performance-enhancing drugs. I would say judges are here to draw lines, and between throwing all those things into it or drawing lines, it’s better to draw a few lines.
GENERAL VERRILLI: We can –we can talk about hypotheticals, but the key point about them is that they’re hypothetical.
JUSTICE BREYER: No, no. These are real cases, by the way. The poisoned potato was in fact–
GENERAL VERRILLI: The vinegar and the goldfish is not a real case, and I would submit that de minimis non curat lex.
JUSTICE ALITO: They’re not real –they’re not real cases because you haven’t prosecuted them yet.
JUSTICE ALITO: This statute has an enormous –an enormous breadth, anything that can cause death or injury to a person or an animal. Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?
GENERAL VERRILLI: Your Honor, I understand the point.
JUSTICE ALITO: On Halloween we gave them chocolate bars. Chocolate is poison to dogs, so it’s a toxic chemical under the chemical weapons—
GENERAL VERRILLI: I think de minimis non curat lex would take care of that, but this –there is serious –this is—
JUSTICE BREYER: There’s chocolate all over the place.
General Verrilli stood his ground: a law that implements a valid Treaty is ipso facto also valid (short perhaps of abrogating the Bill of Rights). And he warned the justices that any other line would endanger the national security. (If we’re not doing everything to implement the Chemical Weapons Convention and throw the book at Mrs. Bond, Syria might start poisoning its people. I am not making this up.) That did not go over well, either:
JUSTICE BREYER: […] And if you’re saying it’s against the national security interest, which is the first time I’ve heard that, that it is the national interests –against the national interests of the United States for me to attempt to draw such a line, then I guess the State Department better file a brief explaining why or you ought –or why you –why you want to push this case or –I mean, I’m –is that what you’re telling me, that if I write the opinion that I think the law requires me to write that I somehow am hurting the national security interests of the United States?
GENERAL VERRILLI: Well, I think there is a –I think there is a real risk in courts getting involved in defining the line between warlike and peaceful purposes —
JUSTICE BREYER: You’re the one–
GENERAL VERRILLI: –and the meaning of the convention when the –when the convention is purposely drafted broadly. And there –there are additional risks in terms of this –the very act of bringing this process of line-drawing to bear; case-by-case, ad hoc judgments about what constitutes a violation and what doesn’t is going to undermine the ability of our negotiators into –to make treaties in the future because they are —
JUSTICE KENNEDY: But you did not give the line to the Chief Justice’s question where there was a treaty that intruded on the Federal structure. You can have a treaty where the President is required to set aside any State law that in his view contravenes a national interest. That’s a structure problem. You’ve–you’ve given us no –no principle the other way.
General Verrilli declined to articulate such a principle for the remainder of his time.
ConLaw 101: when the government stumbles into Court with no principle, rule, or line to cabin its assertion of power, it loses. That’s Lopez, that’s Morrison, that’s NFIB. And it’s this case. When will they ever learn?