Monday, November 04, 2013

Q: What does the Chemical Weapons Convention Implementation Act have in common with Title II of the 1964 Civil Rights Act, the federal bribery statute, and the Sex Offender Registration and Notification Act of 2006?

Marty Lederman

A:  The Supreme Court can avoid any categorical holding about its constitutionality by concluding that Congress's Article I authority supports application of the statute to the facts of the particular case before the Court.

* * * *

In his very helpful summary of Bond v. United States, No. 12-158, which will be argued before the Court tomorrow, Lyle Denniston describes the case as “a grand example of America’s continuing constitutional conversation,” in which “compelling arguments have been put forth with vigor and considerable imagination on both sides” of the principal question presented.  That question is the scope and nature of Congress’s power to implement valid treaties so as to ensure U.S. compliance with its international obligations.  “[T]he only way to keep the decision narrow,” writes Lyle, is if the Court accepts petitioner’s argument that the treaty in question here, the Chemical Weapons Convention—and the statute implementing it—should be construed not to cover her particular malicious “use” of toxic chemicals.  Otherwise, he writes, it is “difficult to imagine how this case can be decided without making history.”

Although I agree with Lyle about the potential importance of Bond, I’m not sure he’s quite right that it will inevitably be a landmark ruling.  A ruling in favor of the government on Congress’s Necessary and Proper power, for example, would not make much history.  Such a holding would require the Court merely to reaffirm Missouri v. Holland (1920), in which the Court held that Congress has the power to implement a valid treaty by passing legislation tailored to ensuring U.S. compliance with its treaty obligations, even where Congress would lack the authority to enact the same statute in the absence of the treaty.  252 U.S. at 432.  The Court has never suggested any doubts about that holding.  And, as I argue in an amicus brief filed in the Bond case on behalf of myself, David Golove and John Mikhail, the Court's Necessary and Proper holding in Holland reflected a well-settled and virtually uncontroverted constitutional understanding in all three branches and among commentators long before Holland.  Indeed, it was the basis for a unanimous holding of the Court in Neely v. Henkel in 1901, and followed from the Court’s constitutional analysis in Baldwin v. Franks (1887), and The Trade-Mark Cases (1879), as well.

Lyle is surely right, however, that a contrary decision—that Congress lacked the constitutional authority to implement the Chemical Weapons Convention by prohibiting the use of chemical weapons, at least as applied to Bond’s case—would indeed be of great historical importance, not least because it would break so sharply with well-established constitutional understandings.  Lyle is further correct that one way for the Court to avoid such a landmark ruling would be to hold that the CWC (and its implementing legislation) was not designed to cover the conduct at issue in Bond’s case—namely, her knowing use of lethal quantities of 10-chlorophenoxarsine and potassium dichromate in order to harm Myrlinda Haynes.

There is also another way in which the Court might issue a fairly narrow ruling, however, even if it concludes that the treaty and statute cover Carol Ann Bond’s use of toxic chemicals:  Without opining on the facial validity of the statute, the Court might hold that 18 U.S.C. 229(a)(1) is constitutional under Congress’s interstate commerce authority as applied to the undisputed facts of Bond’s case.  This is the argument offered in Part II of the amicus brief that Seth Waxman filed on behalf of the American Chemistry Counsel (ACC).  [Disclosure:  I consulted with WilmerHale attorneys on the brief, and on the as-applied argument in particular; but the only parties I represent in the case are myself and fellow amici Professors Golove and Mikhail.]

Bond is only challenging the federal statute as applied to the facts of her case.  (See the cites at page 20 & note 12 of the ACC brief.)  Indeed, she appears to concede that the prohibition on the "use" of toxic chemicals in § 229(a)(1) would be constitutional as applied to purely domestic uses of such chemicals that “threaten[] widespread injury” (Pet. Br. 47), or that “induce[] fear in a civilian population” (p.59). 

At least two aspects of Bond’s own conduct, however, also bring her own case squarely within the scope of Congress’s authority to regulate interstate commerce.

First, as the ACC explains at pages 21-25 of its amicus brief, Bond acknowledged in her plea colloquy that she purchased the potassium dichromate that she placed inside Haynes’ car muffler “online through”  And it is well-established that Congress can prohibit the malicious use of materials purchased in interstate commerce.

Second, in her plea colloquy Bond did not contest the government’s proffer of evidence that, in addition to placing potassium dichromate inside Haynes’ car muffler, she also placed the other toxic chemical in question—the arsenic derivative 10-chlorophenoxarsine—on Myrlinda Haynes’s car door.  (See also Pet. Br. 10 (acknowledging that Bond “spread chemicals” on Haynes’ automobile).)  The Court confirmed in United States v. Lopez that Congress has the authority “to regulate and protect the instrumentalities of interstate commerce,” even when “the threat may come only from intrastate activities.”  514 U.S. at 558.  And so, just as Congress may criminalize the destruction of aircraft (Perez v. United States, 402 U.S. 146, 151 (1971)), or regulate the safety of rail cars (Southern Ry. Co. v. United States, 222 U.S. 20, 26-27 (1911)), it may also prohibit conduct that endangers the principal instrument of interstate commerce, the automobile.  See, e.g., United States v. Cobb, 144 F.3d 319, 322 (4th Cir. 1998) (Wilkinson, J.). 

The Court’s unanimous 2003 decision in Pierce County v. Guillen, 537 U.S. 129, confirms that Congress has the power to protect the safety of automobiles as instrumentalities of interstate commerce.  That case involved a federal statute prohibiting state courts from admitting into evidence, in a tort suit, information collected by the state about hazardous conditions on local roads—information that the state had gathered at the behest of the federal government in order to inform decisions about possible federal-state highway safety programs. The Court held that the federal law superseding state court evidentiary rules was valid Commerce Clause legislation because “Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect of the information-gathering requirement [i.e., exposing the state
to possible tort liability for not having acted to ameliorate the hazard] … would result in more diligent efforts [by the state] to collect the relevant information, more candid discussions of hazardous locations, better informed decisionmaking, and, ultimately, greater safety on our Nation’s roads”—and thus should “be viewed as legislation aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce.”  Id. at 147.  (Notably, it did not trouble the Court that the local intersection at issue in the case—the safety of which the state had studied and at which the accident in question occurred—was four miles from the nearest federal highway, and 150 miles from the closest neighboring state.)

For these reasons, it is fairly clear it was within Congress’s commerce authority to punish Bond's conduct.  (There was also suspicion that Bond had spread toxic chemicals on Haynes’s mailbox—which is why the federal authorities became involved in investigating the case in the first instance.  See McCulloch v. Maryland, 17 U.S. at 417 (explaining that the Second Congress’s enactment of measures prohibiting interference with the mails was “essential to the beneficial exercise of [Congress’s postal establishment] power”).  Bond pled guilty to stealing Haynes’s mail.  But she was not charged with placing toxic chemicals on the mailbox itself.)

As the ACC amicus brief explains at greater length (see pages 25-30), the Court has often upheld Congress’s Article I authority “as applied” to particular categories of defendants, particular categories of conduct, or even as to particular factual circumstances—without deciding whether the statute in question was facially constitutional or might have other applications that would fall outside Congress’s authority.  The most notable cases of this sort--including recent cases such as Salinas v. United States (upholding the federal bribery statute, 18 U.S.C. 666, as applied to a case where the specific conduct of a particular defendant was "a threat to the integrity and proper operation of [a] federal program") and Tennessee v. Lane (upholding Title II of the Americans with Disabilities Act as applied to cases implicating the fundamental right of access to the courts)--have involved Congress’s authorities under the Spending Clause and under the Thirteenth, Fourteenth and Fifteenth Amendments.  

But Katzenbach v. McClung and Heart of Atlanta Motel are famous examples where the Court has upheld provisions of Title II of the 1964 Civil Rights Act under Congress’ commerce authority “as applied” to certain types of businesses, as well.  See McClung, 379 U.S. at 298 (“The sole question, therefore, narrows down to whether Title II, as applied to a restaurant annually receiving about $70,000 worth of food which has moved in commerce, is a valid exercise of the power of Congress.”); id. at 305 (“The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.”); Heart of Atlanta Motel, 379 U.S. at 249 (“The sole question posed is . . . the constitutionality of the Civil Rights Act of 1964 as applied to these facts.”); id. at 261 (“We, therefore, conclude that the action of the Congress in the adoption of the Act as applied here to a motel which concededly serves interstate travelers is within the power granted it by the Commerce Clause of the Constitution.”).

Especially notable in this respect is a case the Court decided just last June, United States v. Kebodeaux.  That case involved a challenge to the constitutionality of the Sex Offender Registration and Notification Act of 2006 (SORNA), which requires federal sex offenders to register in the States where they live, study, and work, even if they had already completed their federal sentences before SORNA was enacted.  Kebodeaux argued that Congress lacked any Article I power to enact such a statute. 

The Court did not reach the question of whether SORNA was facially valid, or could be applied in all cases.  Instead, it resolved the case by concluding that SORNA was constitutional as applied to Kebodeaux himself, because he had been a member of the armed forces and because he continued to be subject to an earlier, less onerous, federal registration requirement that Congress had enacted pursuant to its military “Rules and Regulation” and Necessary and Proper authorities.  Although SORNA itself applies regardless of whether the offender was a member of the armed forces, and regardless of whether the offender had been “unconditionally released” without a registration requirement prior to SORNA’s enactment, the Court did not address whether such breadth was constitutionally problematic, since it concluded that Kebodeaux himself was a person on whom Congress could impose the registration requirement.

Chief Justice Roberts's opinion concurring in the judgment is especially instructive for purposes of Bond, because the Chief Justice concluded that Congress did, indeed, exceed its Article I powers in enacting SORNA:  “The fact of a prior federal conviction, by itself,” he wrote, “does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict's purely intrastate conduct.”  The Chief Justice further explained why, in his view, Congress had acted outside its legislative authority:

Chief Justice Marshall was emphatic that no “great substantive and independent power” can be “implied as incidental to other powers, or used as a means of executing them.”  [McCulloch, 17 U.S. at 418, 411.]  It is difficult to imagine a clearer example of such a “great substantive and independent power” than the power to “help protect the public ... and alleviate public safety concerns” [quoting the majority].  I find it implausible to suppose—and impossible to support—that the Framers intended to confer such authority by implication rather than expression.  A power of that magnitude vested in the Federal Government is not “consist[ent] with the letter and spirit of the constitution,” McCulloch, 17 U.S. at 421, and thus not a “proper [means] for carrying into Execution” the enumerated powers of the Federal Government.

Nevertheless, the Chief Justice concurred in the judgment sustaining Kebodeaux’s conviction under SORNA, because (in the Chief Justice’s view) Congress had “the power to regulate the conduct of members of the military by imposing consequences for their violations of military law.”  “It is this power,” argued the Chief Justice, “that supports application of the [SORNA] federal registration obligation to Kebodeaux.”  To be sure, SORNA had tightened the registration rules, and increased the possible penalties, beyond those that applied to Kebodeaux under the earlier, constitutionally permissible statute.  According to Chief Justice Roberts, however, the “relevant inquiry in this as-applied challenge” was whether “as applied to Kebodeaux here . . . those changes were insignificant.”  The Chief Justice reasoned that the only practical effect of the new law as applied to Kebodeaux is that he had received a sentence one day longer than the maximum sentence he could have received for the same conduct under the earlier statute—an increase that Congress had the power to effect in Kebodeaux’s case (“make slight modifications to a previously imposed registration obligation”), pursuant to its Article I authority to make rules and regulations for the armed forces.

Accordingly, the Chief Justice voted to affirm Kebodeaux’s SORNA conviction due to the idiosyncratic facts of his case—and to do so even though those facts (that Kebodeaux had been a member of the armed forces; that he remained subject to a registration requirement under another law; and that his sentence for violating SORNA was only one day longer than the sentence he could have received under that earlier law) obviously were not elements of the charged SORNA offense, and would not be present in the mine run of SORNA cases.

A similar line of reasoning could be grounds for sustaining Bond’s conviction under section 229(a)(1), which would allow the Court to avoid deciding whether that statute is facially constitutional under the federal government’s constitutional Treaty, Necessary and Proper, and/or Commerce authorities.

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