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Monday, June 2, 2014

Bond v. United States: Sparks Fly Over Statutory Interpretation

Most law students would probably agree that statutory interpretation, while important, is usually not the most exciting area of the law to study. But today's decision by the Supreme Court in Bond v. United States offers a good instance of a (dare I say) fun-to-read series of opinions on statutory interpretation. Justice Roberts (praise for his writing here) wrote the majority opinion, and Scalia penned a lively concurrence in the judgment.

At issue in Bond was whether the defendant, who spread toxic chemicals on her friend's door and mailbox, was guilty of violating 18 U.S.C. §299(a)(1), which prohibits the possession or use of a "chemical weapon." The Majority held that this statute could not be read to apply to the conduct in this case, which it characterized as an instance of "local criminal activity" which the states are typically charged with regulating. From the majority opinion:

The Government’s reading of section 229 would “‘alter sensitive federal-state relationships,’” convert an astonishing amount of “traditionally local criminal conduct” into “a matter for federal enforcement,” and “involve a substantial extension of federal police resources.” Bass, 404 U.S., at 349–350. It would transform the statute from one whose core concerns are acts of war, assassination, and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults. As the Government reads section 229, “hardly” a poisoning “in the land would fall outside the federal statute’s domain.” Jones, 529 U. S., at 857. Of course Bond’s conduct is serious and unacceptable—and against the laws of Pennsylvania. But the background principle that Congress does not normally intrude upon the police power of the States is critically important. In light of that principle, we are reluctant to conclude that Congress meant to punish Bond’s crime with a federal prosecution for a chemical weapons attack. (Slip Op. at 17-18).
Scalia takes issue with the majority approach, and argues that the law is broad enough in scope to cover Bond's conduct, and therefore must be overturned on constitutional grounds. From his concurrence in the judgment:

Bond possessed and used “chemical[s] which through [their] chemical action on life processes can cause death, temporary incapacitation or permanent harm.” Thus, she possessed “toxic chemicals.” And, because they were not possessed or used only for a “purpose not prohibited,” §229F(1)(A), they were “chemical weapons.” Ergo, Bond violated the Act. End of statutory analysis, I would have thought.

The Court does not think the interpretive exercise so simple. But that is only because its result-driven antitextualism befogs what is evident. [footnote omitted] (Slip Op. at 2-3).
Beyond arguing that the text of the law applies to Bond's conduct, Scalia argues that the majority's construction of the law is vague and would violate due process. In Part I.C. of his opinion, he writes:

Henceforward, a person “shall be fined . . . , imprisoned for any term of years, or both,” §229A(a)(1)—or, if he kills someone, “shall be punished by death or imprisoned for life,” §229A(a)(2)—whenever he “develop[s], produce[s], otherwise acquire[s],transfer[s] directly or indirectly, receive[s], stockpile[s], retain[s], own[s], possess[es], or use[s], or threaten[s] to use,” §229(a)(1), any chemical “of the sort that an ordinary person would associate with instruments of chemical warfare,” ante, at 15 (emphasis added). Whether that test is satisfied, the Court unhelpfully (and also illogically) explains, depends not only on the “particular chemicals that the defendant used” but also on “the circumstances in which she used them.” Ibid. The “detergent under the kitchen sink” and “the stain remover in the laundry room”are apparently out, ante, at 16—but what if they are deployed to poison a neighborhood water fountain? Poisoning a goldfish tank is also apparently out, ante, at 17, but what if the fish belongs to a Congressman or Governor and the act is meant as a menacing message, a small-time equivalent of leaving a severed horse head in the bed? See ibid. (using the “concerns” driving the Convention—“acts of war, assassination, and terrorism”—as guideposts of statutory meaning). (Slip Op. at 7-8).
This case offers a good instance of a conflict between two different approaches to statutory interpretation. The caliber of writing on both sides of the debate turns what could be a dry exercise into something that is far more exciting.

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