A week ago my students and I went to the U.S. Supreme Court and saw the argument in Bond v. United States.
Carol Bond tried to poison Myrlinda Haynes because of an affair with Bond’s husband. Local authorities wouldn’t bother helping Haynes but sent her to the Postal Service, because poison was found in her mail and the Postal Service has the power to prosecute crimes involving the mail. The Postal Service set up a camera and caught Bond in the act. Postal inspectors arrested Bond and a federal grand jury indicted her for violating the Chemical Weapons Implementation Act.
The United States is a party to the international Chemical Weapons Convention. Congress passed a statute to implement the Convention which prohibited “knowing possession or use, for nonpeaceful purposes, of a chemical that can cause death” or other harms. Treaties and state failure to execute them were a major reason for the Constitution, which gives Congress power to pass laws that are necessary and proper for carrying them out.
But attorneys for Bond smelled an opportunity to narrow national power, arguing such crimes were local and reserved to the states.
There are many clauses in the Constitution which create national powers and some which explicitly limit what the federal government can do. There is no language in the Constitution which limits national power because of state power. The 10th Amendment actually says exactly the reverse – if authorized by the people, the states may have whatever powers Congress doesn’t. But, to determine what powers the federal government has, the Amendment directs one to look at the powers granted to the federal government, not to state powers. Nor could it – state powers are never defined in the Constitution.
But the argument has been gaining traction in conservative circles that there must be some limit and therefore the Supreme Court should create it, despite the lack of language in the Constitution defining such a line or saying that it exists, and despite the history that shows that the Founders were much more nationalist than the modern conservative movement, and, by large margins in the Constitutional Convention, they twice defeated attempts to deny Congress power over local policing.
Solicitor General Verilli pointed out to the Court that limiting the meaning of the statute at the very moment when the U.S. is trying to get chemical weapons out of Syria would be a major problem. Chief Justice Roberts responded by saying “I’m sure that the people who’ve worked in the national branch of government, particularly for the State Department, would like to have as much authority as they can get to negotiate treaties.” And he wanted to know what that federal power would do to what he called state “prerogatives” although no such concept is identified or defined in the Constitution.
But this was not really about protecting state power. The Roberts Court has not been friendly to state power. It has found numerous ways to prevent states from protecting their own citizens at the same time that it has used state powers as an argument to limit national power. This case was crafted and brought to the Court as another step to weaken government in general. The Court has its own views about government authority, and where the Constitution doesn’t share their views, the Court will just insert them.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Morality Imposed: The Rehnquist Court and Liberty in America. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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