Or: “Can an International Treaty Make Barack Obama President For Life?”
First, a programming note. As often is the case, much of my writing energy has been consumed as of late in court documents that have not yet been released on the internet (indeed in many case, have not yet been filed.) But I am on break and in that break, I can talk about other things. I will also catch up on the big legal occurrences last week shortly.
Today the Supreme Court handed down its opinion in Bond v. U.S., and while the decision was unanimous, it was a surprisingly contentious unanimity. But first a little background.
There is an infamous line in the otherwise unnotable opinion on obscenity from Justice Potter Stewart. First Amendment doctrine has long held that “obscenity” (more or less, hard core porn) is an exception to freedom of speech or the press that can therefore be banned, even with criminal consequences. Of course anyone with basic Google skills can quickly discover that such bans are like the proverbial finger in the dam as it bursts, but whether such bans are of any practical use or not is beside the point. They exist and therefore the Supreme Court had to wrestle with how to define that term: obscenity.
So Jacobellis v. Ohio (1964) is mostly unremarkable. It involved a movie called The Lovers, which I have never viewed but you can read a review here, but to be blunt nothing said in the opinion was too unusual. It was from the time when the Supreme Court felt that the way to manage the issue of obscenity was to personally review every single allegedly obscene movie, book, exposing these justices to whatever deleterious social effects these movies supposedly have. Still, it was a pretty straightforward application of the prevailing legal standard at the time: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest, so long as it was utterly without redeeming social importance. In other words movies you watch just to see people having various kinds of sex, with no attempt to have a plot, characters, social significance, etc. Which still doesn’t really tell you where the line between the good stuff is and the stuff that can be banned, does it?
Again, all of this is actually not remarkable for the doctrine at the time and the case is pretty much forgotten except for what Justice Stewart wrote in his concurrence:
[U]nder the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
(Emphasis added.) In legal circles that quote ("I know it when I see it") has not been treated very kindly and deservedly so. The Supreme Court has regularly stated that limitations on free expression needed to be clearly defined, so as to avoid the “chilling effect” that occurs where people try to steer far clear of the line between free speech and criminal sanction. Yes, you and I just talking can say, “we all know what kinds of movies we are talking about.” But in law that kind of vagueness is ordinarily fatal... except when the Supreme Court is the one purveying the vagueness.
So that brings us to Bond v. United States, a case handed down just today, which can be read here. This case wouldn’t seem at first glance to relate in any way to obscenity, but it does have a downright Stewart-like quality in one respect.
Roberts wrote the majority opinion, joined without expressed reservation by all but Alito, Thomas and Scalia, who each wrote separate concurrences. The basic story is that a woman (Bond) found out her husband was cheating on her and therefore made a feeble attempt to harm the other woman with chemicals. The “other woman” only ended up suffering a minor chemical burn on her thumb. I don’t want to diminish what amounts to an assault, but here’s what it isn’t: it isn’t a rocket filled with chemicals shot on a village. It was this:
Bond stole a quantity of 10-chloro-10H-phenoxarsine (an arsenic-based compound) from her employer, a chemical manufacturer. She also ordered a vial of potassium dichromate (a chemical commonly used in printing photographs or cleaning laboratory equipment) on Amazon.com. Both chemicals are toxic to humans and, in high enough doses, potentially lethal. It is undisputed, however, that Bond did not intend to kill Haynes. She instead hoped that Haynes would touch the chemicals and develop an uncomfortable rash.
Between November 2006 and June 2007, Bond went to Haynes’s home on at least 24 occasions and spread the chemicals on her car door, mailbox, and door knob. These attempted assaults were almost entirely unsuccessful. The chemicals that Bond used are easy to see, and Haynes was able to avoid them all but once. On that occasion, Haynes suffered a minor chemical burn on her thumb, which she treated by rinsing with water.
So Haynes called the local police and they didn’t care, but the federal government chose to charge Bond with using a chemical weapon in addition to theft of the mails.
You see a few years back we ratified a treaty on the use of chemical weapons, and passed legislation consistent with that act. So this presented a few questions for the court:
1) Did the Chemical Weapons Convention Implementation Act apply to this conduct?
2) Did Congress ordinarily have the power to enforce such a law in this situation?
3) If Congress didn’t ordinarily have the power to enforce this law, would the fact that this is implementing a treaty make the law Constitutional?
Well, we did not get to those last two questions directly. Instead the Court decided, much as it had with the Obamacare case, to read the statute as to duck the issue entirely. There is a common constitutional doctrine that if a statute is ambiguous, and you have two possible readings of it, that the courts will avoid the interpretations that leads to a serious doubt to its constitutionality.
For the government—and Justice Scalia—the argument is simple. First in 18 U.S.C. § 229, it states that “it shall be unlawful for any person knowingly... to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon[.]” Then in 18 U.S.C. § 229f it says that “chemical weapons”
means the following, together or separately:
(A) A toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose.
(B) A munition or device, specifically designed to cause death or other harm through toxic properties of those toxic chemicals specified in subparagraph (A), which would be released as a result of the employment of such munition or device.
(C) Any equipment specifically designed for use directly in connection with the employment of munitions or devices specified in subparagraph (B).
Then in turn the statute defines a “purpose not prohibited under this chapter” as follows:
(A) Peaceful purposes. - Any peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity.
(B) Protective purposes. - Any purpose directly related to protection against toxic chemicals and to protection against chemical weapons.
(C) Unrelated military purposes. - Any military purpose of the United States that is not connected with the use of a chemical weapon or that is not dependent on the use of the toxic or poisonous properties of the chemical weapon to cause death or other harm.
(D) Law enforcement purposes. - Any law enforcement purpose, including any domestic riot control purpose and including imposition of capital punishment.
So just to be clear, the LAPD can have a chemical filled Scud missile, so long as it is for the purpose of law enforcement.
Humor aside, then the application of the law is pretty straightforward. As noted above the substance is toxic, so it would seem to be “a toxic chemical or its precursors” fitting that part of the definition of chemical weapons. And she did use it. So the only outstanding question would seem to be whether this was a “peaceful purpose” and the lower court brushed that aside without even considering it: assault is not a peaceful purpose. And Roberts concedes this syllogism makes a degree of sense.
But, Roberts said,
The problem with this interpretation is that it would “dramatically intrude[ ] upon traditional state criminal jurisdiction,” and we avoid reading statutes to have such reach in the absence of a clear indication that they do.
Look, Roberts said in paraphrase, when we read the law there are tons of hidden assumptions behind them.
For example, we presume that a criminal statute derived from the common law carries with it the requirement of a culpable mental state—even if no such limitation appears in the text—unless it is clear that the Legislature intended to impose strict liability.
That is true as far as it goes, but the court is all over the place in articulating that hidden assumption. Is the issue federalism? Then simply reading a requirement of a connection to interstate commerce into the statute would be sufficient as the courts had done in the past. Or one could take this line from Roberts’ opinion “The Federal Government undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts with the potential to cause mass suffering” and use it to imply it has to be connected to such a traditional area of federal concern. Any one of these articulated approaches would have had some decent support, but the problem is that Roberts doesn’t effectively argue in favor of any of them and you get the feeling that he is just rejecting this conviction based more on feel than a specific legal doctrine, writing things such as: “When used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare” and “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard.” Absurd or unconstitutional results are a useful guide to reading a statute, but sometimes Congress does intend that and if you are going to say that hidden assumptions are preventing you from reading words that ordinarily read this way from being read this way, you have to be clearer about what those assumptions are. Saying this stuff is “not of the sort that an ordinary person would associate with instruments of chemical warfare” is not as memorably terse as “I know it when I see it” but how exactly does it differ from Stewart’s infamous definition of obscenity?
By contrast, Scalia, who has a strong and relatively consistent belief in following the plain text of the laws, says we should read the statute as applying to this crime and therefore invalidate the statute. One thing that really struck me, reading Scalia’s opinion is how acidic it is (sorry for the unintentional pun). Scalia can be witheringly sarcastic and this is a prime example of it. To pick up a few examples:
It is the responsibility of “the legislature, not the Court, . . . to define a crime, and ordain its punishment.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J., for the Court). And it is “emphatically the province and duty of the judicial department to say what the law [including the Constitution] is.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (same). Today, the Court shirks its job and performs Congress’s.
Or:
The Court’s account of the clear-statement rule reads like a really good lawyer’s brief for the wrong side, relying on cases that are so close to being on point that someone eager to reach the favored outcome might swallow them.
Or:
Imagine what future courts can do with that judge-empowering principle: Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous!
Or:
The same skillful use of oh-so-close-to-relevant cases characterizes the Court’s pro forma attempt to find ambiguity in the text itself,
Or:
The Court retorts that “it is not unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition.” Ante, at 16. So close to true!
Which is probably as close as any Supreme Court opinion is ever likely come to actually saying the other side is full of it. And this next example is fairly dripping with sarcasm:
But there is nothing either (1) realistic or (2) well known about the presumption the Court shoves down the throat of a resisting statute today. Who in the world would have thought that a definition is inoperative if it contradicts ordinary meaning? When this statute was enacted, there was not yet a “Bond presumption” to that effect—though presumably Congress will have to take account of the Bond presumption in the future, perhaps by adding at the end of all its definitions that depart from ordinary connotation “and we really mean it.”
And Scalia even throws back into Roberts’ face the “I know it when I see it” line, describing how the new law effectively reads:
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).
Really, seriously, you have to read both opinions to take in just how sarcastic and derisive Scalia was towards Roberts. I suspect Roberts is the kind of person who can laugh this kind of criticism off, but for many people this would be the end of any kind of cordial relationship.
Mind you, both men agree on the ultimate conclusion. This conviction was wrongfully gained. This is not to say what Bond did was legal, just that it is illegal under state, not federal, law. The difference is that Roberts interpreted the law as to avoid any conflict with the Constitution, and Scalia wanted to say that the law applied to this conduct and therefore it was unconstitutional.
As we are talking about hidden assumptions, I think it is fair to suspect there are hidden undercurrents here, too. This statute was passed in 1998. I wonder how many really truly vile people have been convicted of doing exactly what this law prohibits? If the statute is struck down they would all have to be freed, unless they are charged with other crimes. Was Roberts worried about setting lose a bunch of terrorists and their ilk? This blog has become somewhat of a testament to the damage letting one sociopath loose can do, so I can easily sympathize with his position.
Meanwhile, for Scalia I think some of this is lingering anger over Roberts’ decision to uphold Obamacare. As you might recall, that involved interpreting a penalty as a tax, in order to avoid rendering it unconstitutional. Kennedy, Thomas, Alito and Scalia wanted to interpret the law as written and strike it down, just as Scalia did here and I think he is a bit fed up with that tendency.
And in general Scalia just believes in following the text and the idea that an ordinary citizen should be able to open up the statute books and have some chance of figuring out what is expected of him. As Scalia wrote today
A criminal statute must clearly define the conduct it proscribes. If it does not “‘give a person of ordinary intelligence fair notice’” of its scope, United States v. Batchelder, 442 U. S. 114, 123 (1979), it denies due process.
It’s an old fight. Do you just interpret the law exactly as written and let Congress fix its own messes? Or do you save them from their own dumb selves sometimes, especially considering that it could have consequences on a lot of innocent people? Roberts is evidently willing to go a considerable distance in the direction of saving Congress from itself, and Scalia isn’t.
The other issue lurking here was the issue of the treaty making power. As Roberts notes in the opinion, there was no attempt by the government to justify this law as a matter of the commerce power. Instead they rested their entire argument on the theory that because it was implementing a treaty it was inherently constitutional.
The Government replies that this Court has never held that a statute implementing a valid treaty exceeds Congress’s enumerated powers. To do so here, the Government says, would contravene another deliberate choice of the Framers: to avoid placing subject matter limitations on the National Government’s power to make treaties. And it might also undermine confidence in the United States as an international treaty partner.
This is a theory that has been pushed in academic circles for a while. I was exposed to it in law school and I thought it was a poor theory then. It all goes back to the supremacy clause of the constitution. Here’s what it says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
So let’s parse this a bit. The Constitution is the law of the land. So is any act of Congress “which shall be made in Pursuance thereof.” The courts have read that last phrase to mean that only laws that follow the Constitution are covered by this language, which seems to be a pretty natural reading.
But there is a small cadre of academics who say, “ah! There is no such limiting language when it comes to treaties! Therefore even treaties that are ordinarily unconstitutional are the supreme law of the land! So if we make a treaty with Latvia that says that their respective rulers shall hold their offices for life, then we have to accept that Obama is President for life!”
Some liberals love this theory because 1) it represents the idea that we might have to subjugate our parochial laws to “enlightened” international ideals (because naturally we would only be treating with countries which are more enlightened, instead of, say, China or Saudi Arabia), 2) it also means we might have to subsume ourselves to something like the U.N., and 3) because they happen to control the Senate and the White House where treaties are made. I suspect that if the Presidency and Senate should fall into Republican hands, liberal academics will fall back in love with the idea that the Treaty-making power is limited.
And mind you there is some precedent for this. For instance, my in-laws had a family friend who was looking to become a citizen and I helped him. I will have to be vague about this person because my wife and I are being stalked, but I can tell you he was born in 1939, in the Philippines (thus arguably “Filipino” despite not being of that heritage), at which point the Philippines was held by the U.S. So my first question was “why the hell wasn’t this person already a citizen?” After all the Fourteenth Amendment states that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In what sense was the Philippines not in the United States at that time? Seemed to me that they were as much part of America as Hawaii or Alaska—or Porto Rico, for that matter.
But, he explained to me, in the treaty ceding the Philippines and Porto Rico from Spain, it stated that “[t]he civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress.” This was interpreted by Congress and the courts as allowing Congress to decide whether persons born there were citizens of the United States and so the Filipinos were not allowed to be citizens. This is despite the fact that I have read of Filipinos being charged with Treason in that period and that in U.S. v. Wong Kim Ark (1898) the Supreme Court noted that in colonial times “all persons born under British dominion are natural-born subjects.” In other words, the Supreme Court said we were being less generous with our colonists than the British in that respect.
And there is equally some language in Missouri v. Holland (1920) that suggests such an interpretation in relationship to migrant birds that cross into Canada.
So there is some precedent, involving screwing millions of brown people out of citizenship in the United States and protecting certain species of birds, and the left wants to continue that tradition in general and both Scalia and Thomas wanted to put an end to that line of thinking.
Scalia’s primary argument on this point is summed up in this passage:
Under Article I, §8, cl. 18, Congress has the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” One such “other Powe[r]” appears in Article II, §2, cl. 2: “[The President] shall have Power, by and withthe Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Read together, the two Clauses empower Congress to pass laws “necessary and proper for carrying into Execution . . . [the] Power . . . to make Treaties.”
It is obvious what the Clauses, read together, do not say. They do not authorize Congress to enact laws for carrying into execution “Treaties,” even treaties that do not execute themselves, such as the Chemical Weapons Convention.
So the argument Scalia hangs his hat on is that even if treaties can go beyond the Constitution, laws carrying them into effect cannot. Carrying into effect the power to make treaties, Scalia argues, is stuff like
hiring treaty negotiators, empower[ing] the Department of State to appoint those negotiators, form[ing] a commission to study the benefits and risks of entering into the agreement, or [paying] for a bevy of spies to monitor the treaty-related deliberations of other potential signatories.
But it doesn’t extend to implementing the treaty once they are in effect. But honestly, I think that argument is a little too cute. If a treaty requires us to set up a military base in country X, Congress is going to have to pass a law implementing that treaty and yet does any person think that such implementation is not allowed under the constitution? Meanwhile Thomas argues that a hidden assumption in the Treaty making power is that it is limited to foreign relations—that the conduct of a citizen that has no effect on international relations is not the proper subject of a treaty. And I don’t see anything obviously wrong with that, except to note that given the way we have extended the concept of interstate commerce to ridiculous lengths, I am not sure that limiting the treaty power to inter-country issues is very much protection.
And it is worth noting that Scalia and Thomas both resort to arguments from absurdity. Scalia writes, for instance, that
If that is true, then the possibilities of what the Federal Government may accomplish, with the right treaty in hand, are endless and hardly farfetched. It could begin, as some scholars have suggested, with abrogation of this Court’s constitutional rulings. For example, the holding that a statute prohibiting the carrying of firearms near schools went beyond Congress’s enumerated powers, United States v. Lopez, 514 U. S. 549, 551 (1995), could be reversed by negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools. Similarly, Congress could reenact the invalidated part of the Violence Against Women Act of 1994that provided a civil remedy for victims of gender motivated violence, just so long as there were a treaty on point—and some authors think there already is, see MacKinnon, The Supreme Court, 1999 Term, Comment,114 Harv. L. Rev. 135, 167 (2000).
Thomas does this less, but he does do it to a degree, writing:
Yet to interpret the Treaty Power as extending to every conceivable domestic subject matter—even matters without any nexus to foreign relations—would destroy the basic constitutional distinction between domestic and foreign powers. See United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 319 (1936) (“[T]he federal power over external affairs [is] in origin and essential character different from that over internal affairs . . .”). It would also lodge in the Federal Government the potential for “a ‘police power’ over all aspects of American life.” Lopez, supra, at 584 (THOMAS, J., concurring). A treaty-based power of that magnitude—no less than a plenary power of legislation—would threaten “‘“the liberties that derive from the diffusion of sovereign power.”’” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9). And a treaty-based police power would pose an even greater threat when exercised through a self-executing treaty because it would circumvent the role of the House of Representatives in the legislative process. See The Federalist No. 52, p. 355 (J. Cooke ed. 1961) (J. Madison) (noting that the House has a more “immediate dependence on, & anintimate sympathy with the people”).
And even I do, for that matter, invoking the specter that, through the treaty making power we might see Obama become President for life. Scalia and Thomas don’t think it is inappropriate to ever reason from avoiding unconstitutional and/or absurd interpretations. They are just disagreeing with how far Roberts went in doing so.
And bluntly, it is going a long way for what is actually very simply solved. Yes, the Supremacy Clause doesn’t say that treaties are the supreme law of the land, pursuant to the Constitution but there is a very specific reason for that. Before we had our Constitution, we had the Articles of Confederation and we did have treaties ratified by them. The obvious intent of the founders was to say, upon ratifying the Constitution that 1) the Articles of Confederation were no longer the law, 2) all laws passed by Congress under the Articles were no longer law, but 3) all treaties remained in effect. And this was because we didn’t want to be seen repudiating those treaties.
But that limiting language—stating that all treaties ratified “under the Authority of the United States” is the supreme law of the land—is sufficient. Where does the President get his authority? Where does the Senate get it? From the Constitution. And the Constitution does not grant the President or the Senate the power to violate it. How can it?
But a sharp eyed reader might ask: “would this mean that an otherwise unconstitutional treaty ratified prior to the ratification of the Constitution would still be the law of the land so long as it was done in line with the Articles of Confederation?” And the answer is yes, obviously, and one can be reasonably sure that the founders were not overly worried about that because 1) they knew what treaties they were dealing with, and you cannot add a new one today under the Article of Confederation now that it is defunct.
The title of this piece made fun of Roberts, in a way, by saying he knows what a chemical weapon is when he sees it. But in a real sense, by offering two insufficient theories of limiting the treaty-making power, and offering a parade of horribles in argument against this far-reaching interpretation of the treat-making or treaty executing power, Scalia and Thomas (and Alito who joined them), are almost saying themselves “I know a violation of the Constitution when I see it.” Argument from absurdity has validity, especially as a way of waking yourself up if you are going down the wrong path, but it can’t be the whole argument. “That can’t be right!” is a starting point, but that is not a legal standard.
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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years. I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence. If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right. And thank you.
Follow me at Twitter @aaronworthing, mostly for snark and site updates. And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here. And you can read a little more about my novel, here.
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Disclaimer:
I have accused some people, particularly Brett Kimberlin, of reprehensible conduct. In some cases, the conduct is even criminal. In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence against any person or any threat of such violence. This kind of conduct is not only morally wrong, but it is counter-productive.
In the particular case of Brett Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed communication. I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.
And for that matter, don’t go on his property. Don’t sneak around and try to photograph him. Frankly try not to even be within his field of vision. Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).
And do not contact his organizations, either. And most of all, leave his family alone.
The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report. And even then if he tells you to stop contacting him, obey that request. That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.
And let me say something else. In my heart of hearts, I don’t believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you haven’t don’t start.