In perhaps the most bizarre combination of fact pattern and legal issue to come before the Court in recent memory, the Court decided in Bond v. United States that a woman could not be convicted under the Chemical Weapons Convention Implementation Act for attempting to give her husband’s paramour an uncomfortable rash by spreading toxic chemicals on her car, mailbox, and doorknob. And this is not Ms. Bond’s first time in the Supreme Court: last term, the Court decided that she had standing under Article III and the Tenth Amendment to challenge the application of the law against her. Behind the outrageous facts and complicated procedural history, however, lies an important question about the power of Congress to enact legislation implementing an international treaty where Congress would otherwise not have such power under Article I of the Constitution. If that were possible, Congress could, through simply entering into a treaty, aggrandize its power to encompass those powers that otherwise belong to the states, such as the police power.
But the Court sidestepped this constitutional issue in Bond, ruling not that Congress had overstepped in enacting the Implementation Act, but that Bond’s conduct was simply not covered by the Act. Writing for the majority, Chief Justice Roberts reasoned that because our constitutional structure leaves local criminal activity primarily to the States, federal law should not be read as intruding on that responsibility, unless Congress has clearly indicated that the law should have such reach. Because the Chemical Weapons Convention Implementation Act contains no such clear indication, the majority concluded that it does not cover Bond’s purely local criminal conduct.
Justice Scalia, joined by Justice Thomas and joined by Justice Alito in part, concurred in the judgment, but read the Implementation Act to clearly cover Bond’s conduct. Thus, those justices would have reached the constitutional issue and held that Congress exceeded its Article I powers in enacting the Implementation Act.
Because the majority decided the case on very narrow grounds, the case will not likely have any far-reaching implications. Above all, Bond reaffirms Chief Justice Roberts’s commitment to the doctrine of constitutional avoidance—avoiding constitutional issues in those cases that can be disposed of on other grounds.