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Bond v. U.S.
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Manhattan Institute Center for Legal Policy intern Meghan Herwig assisted in drafting this post.

Monday's Supreme Court decision in Bond v. United States, which we earlier profiled here, involved a case raising fundamental constitutional questions of federalism and separation of powers. Rather than grappling with these questions, the Court majority ruled on statutory grounds.

Case background
Carol Anne Bond, a Pennsylvania microbiologist, attempted to poison her husband after learning that he had impregnated her best friend. She was convicted of violating a U.S. federal statute enacted to implement the Convention on Chemical Weapons, a 1997 treaty intended to prevent the proliferation of chemical weapons. On appeal, Bond's lawyers argued that the law did not apply to Bond's conduct and second that even if it applied it was unconstitutional.

Key to Bond's constitutional claim was whether a treaty signed by the president and ratified by the Senate can expand Congress's legislative powers beyond those otherwise enumerated in the Constitution. A 1920 Court decision authored by Justice Holmes, Missouri v. Holland, had held that for a valid treaty "there can be no dispute about the validity of the statute under Article I, ยง 8, as a necessary and proper means to execute the powers of the Government" -- without further analysis or authority. A subsequent Court decision, Reid v. Covert, limited this holding such that a treaty obligation could not empower Congress to violate the Bill of Rights. More recent scholarship by Georgetown law professor Nicholas Quinn Rosenkranz has challenged Missouri v. Holland's holding in light of the constitution's text, history, and structure.

While the Supreme Court unanimously overturned Bond's conviction, Chief Justice Roberts's majority opinion, on behalf of six justices, avoided the constitutional question. Roberts reasoned that the Chemical Weapons Convention was not intended to cover minor, local poisoning incidents and determined that Congress could not have intended such a construction of the convention's implementing statute, which would upset the constitutional balance of power between Congress and the states. Roberts thus construed the law narrowly and concluded that the law could not apply to Bond's crime.

Justices Scalia, Thomas, and Alito each filed separate concurring opinions arguing that the case had to be decided on constitutional rather than statutory grounds. In their view the statute on its face clearly applied to any attempted use of a "toxic chemical" not used for a "peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity." Justice Scalia's concurrence, joined by Justice Thomas, was particularly specific in its inquiry into the limits of the power given to the President and Senate to "make" treaties -- following significantly the line of argument of Professor Rosenkranz's article -- and called for Missouri v. Holland to be overturned.

SCOTUSblog's Amy Howe ably summarizes the decisions in more detail here.

At Volokh, Jonathan Adler suggests that the concurring opinions may signal some discontent on the part of the more conservative justices with the Chief Justice's tendency to embrace strained statutory readings to avoid constitutional questions (the so-called doctrine of "constitutional avoidance"). His co-conspirator Ilya Somin reads the tea leaves and suggests that in a future case where the treaty issue is more explicit, the Court may be disposed to overturn Missouri v. Holland and limit the ability of a treaty to expand Congressional legislative authority, and offers further thoughts on the justices' various positions.

In its embrace of constitutional avoidance, the Court's decision is obviously reminiscent of the Chief Justice's lone opinion in NFIB v. Sebelius, in which he construed the individual mandate of the PPACA (Obamacare) to be an exercise of Congress's taxing power rather than its Commerce Clause power to uphold the law's core provision (though in that opinion, the Chief did observe that the mandate was clearly a penalty, and only reached the "tax" construction as an alternative functional ruling through which Congress could have reached the same end). The Bond decision also brings to mind Justice Ginsburg's opinion in Skilling v. U.S., which effectively rewrote the "honest services fraud" statute (construing the law's vague provision to apply only to bribes and kickbacks) to avoid deciding whether it was unconstitutionally vague.

The Bond and Skilling decisions may signal how the Court will rule in the upcoming Yates v. United States. Yates involves the prosecution of a commercial fisherman accused of violating the Sarbanes-Oxley financial reform law's prohibition on destroying, manipulating, or concealing any "record, document or tangible object" to hinder federal investigations -- in the context of throwing back fish that may have been smaller than the minimum size allowed by regulations. While a fish is certainly a "tangible object," the Sarbanes-Oxley law, passed in the wake of the Enron-era corporate scandals, was clearly contemplating document-shredding and similar destruction of corporate records such as that conducted by Enron's auditor, Arthur Andersen. It will be interesting to watch whether the justices in the Bond majority will continue the trend of narrowing criminal statutes beyond their clear terms when the government is applying a broad statutory provision in the criminal-law context.

Earlier this week, the Court of Appeals for the D.C. Circuit issued its much awaited opinion regarding the Securities and Exchange Commission's conflict minerals rule. The court ruled in the SEC's favor with respect to the challengers' Administrative Procedure Act and economic analysis claims and in the challengers' favor on their constitutional claim. The claim on which the challengers prevailed has attracted the most attention, but other parts of the opinion could also have important effects.

Vinny Sidhu
Legal Intern, Manhattan Institute's Center for Legal Policy

Ever so often, the Supreme Court hears a case that has ramifications for our very constitutional structure.These cases reach into the heart of our government to see what strictures remain between the founding generation and our own.

The Court is currently hearing oral arguments in Bond v. United States, a case dealing with fundamental issues of federalism and separation of powers. Specifically, the issue deals with the extent to which Congress can abrogate state police powers pursuant to the mandates of Congress's treaty obligations.

But in a larger sense, this case speaks to the validity of the framework of analysis the Court has employed since its inception. The presumption of constitutional analysis has always begun on the side of federalism and separation of powers; that is, the Constitution created certain enumerated powers to delegate to the federal government and left the majority to the states, so we begin our analysis from where the nexus of the power was meant to lie. In other words, our underlying premise is always to begin with federalism, and inch towards increasing federal power as circumstances might necessitate.

The Bond court has a chance to take another step towards maintaining the presumption of our Constitution by reaffirming the states' role in criminal prosecutions.

The Wall Street Journal has further details on the salient issues here, and the New York Times has more on the oral arguments here.

After oral arguments before the Supreme Court of the United States on February, 28 and our featured discussion analyzing those arguments, it was reported that the Court, in the Kiobel v. Royal Dutch Petroleum case, issued an order directing the lawyers to reargue the case in the next term with an expanded argument on the scope of the Alien Tort Statute which gives aliens a right to sue in U.S. courts.

The justices seek to examine a question broader than whether corporations can be held liable for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms. Instead the Court wants to tackle the extraterritoriality issue head on in order to decide whether and under what circumstances the 223-year-old Alien Tort Statute allows U.S. courts to "recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." In addition, it seems that the Court may also address whether a "party being sued can be challenged not for directly engaging in human rights abuses, but for 'aiding and abetting' someone else who did so."

To gain a better understanding of the Court's action, we invited Penny Venetis (amicus brief), clinical professor of law and co-director of the Constitutional Litigation Clinic at Rutgers School of Law in Newark, and Andrew Grossman (amicus brief), visiting legal fellow in The Heritage Foundation's Center for Legal and Judicial Studies and litigator at Baker & Hostetler, to discuss the recent order in the Kiobel case.

Grossman, in the podcast, comprehensively reviewed what led to the Court's order:

I think the theme, the mood of the Court at oral argument, was probably best summed up by a statement that Justice Kennedy made before the first advocate [arguing] before the Court even got out his second sentence which was that, expressing great wariness, "the ATS authorizes federal courts to exercise civil jurisdiction over alleged human rights abuses over which the nation has no connection." I think that Justice Alito put it even more clearly when he asked, "What business does a case like this have in the courts of the United States?"

...I think the court realized in considering this case, especially due to something that happened immediately after oral argument, that deciding the case on corporate liability wasn't going to get them where they wanted to go which was eliminating categorically this type of litigation.

In a separate podcast, Professor Venetis had this to say about the Court's order when asked about Justice Alito's questioning:

...I think that Justice Alito was trying to wrap his head around the notion of extraterritoriality which we've been talking about and that's why the court wants to hear additional arguments, but I don't necessarily think it is a bad thing. It certainly is unusual for the court, but I don't necessarily think it is a bad thing. I think there are a number of Alien Tort Statute cases [making] their way through the system, and they're all making their way one-by-one up to the U.S. Supreme Court. And to me, it seems that the Court really wants to take care of these unanswered questions once in for all. That it is going to consider these open questions that it never spoke about in Sosa or in any other case. It [the Court] really wants to address it all at once rather than by piecemeal every few years. I think that that's certainly one way to interpret the Court's actions. The other is that it truly is concerned about this issue of extraterritoriality.
Kiobel debate complete

On Tuesday February 28, the Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum, a case testing the extent to which U.S. law enables litigation in American courts against multinational corporations for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms.

In Kiobel, Nigerian nationals are attempting to invoke the Alien Tort Statute to sue oil companies that the plaintiffs allege worked with the Nigerian military to suppress local opposition to oil exploration. A divided panel of the Second Circuit rejected the Kiobel claim by reasoning that corporate liability was not customary international law, such that the claim lay outside the Alien Tort Statute's jurisdiction.

To discuss these issues, we were lucky to have two distinguished international law professors who each signed amicus briefs in the case, on either side. Julian Ku of Hofstra Law School signed a brief for professors of international law, foreign relations law and federal jurisdiction (PDF) that argued both that the original meaning of the Alien Tort Statute was far narrower than its current application and that the Kiobel suit was unwarranted based on Supreme Court precedent. David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, signed a brief for international law scholars (PDF) that argued, conversely, that the suit was a legitimate application of international law through the Alien Tort Statute, and that the Second Circuit had misconstrued the international law in this case.

Professor Julian Ku of Hofstra Law School and Professor David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, discuss the extent to which companies can be sued by foreigners in U.S. courts for alleged human rights abuses abroad, at issue in the Kiobel v. Royal Dutch Petroleum case currently before the Supreme Court with oral arguments scheduled to be heard tomorrow. This installment of Point of Law's monthly featured discussions was deliberately scheduled to generate quick-time analysis and reaction to the Kiobel case shortly after it is argued in the courtroom.

Professor Ku's opening comment neatly summarized the major arguments on both sides of the central issue in Kiobel. Professor Ku then discussed the "unattractive" argument against corporate liability, yet concluded that this argument, while unattractive and unpopular, is persuasive and probably correct, citing the strong presumption that "international law doesn't impose duties directly on corporate entities after all." The featured discussion promises to be lively and thoughtful; please check back throughout the week as the discussion continues.

Last year, a divided Second Circuit decided Kiobel v. Royal Dutch Petroleum, which ended three decades of abusive application of the Alien Tort Statute—an eighteenth-century federal law—against innocent-bystander corporate defendants through application of amorphous concepts of international law. The losing plaintiffs have submitted a certiorari petition noting the circuit split with the Eleventh Circuit. [SCOTUSblog via Bashman; Jackson]

President Obama declared his support for the non-binding UN resolution, which declares "indigenous peoples have a right to lands and resources they traditionally occupied or otherwise used." As I tell WND (in a story with an unrealistically scary headline), one can expect tribes to use such a resolution in an attempt to relitigate long-resolved land disputes. Walter Olson's excellent forthcoming book, Schools for Misrule has a chapter on such litigation.

The American Lawyer has posted six excerpts from the outtakes of lawyer Steven Donziger in the "documentary" Crude that Chevron claims demonstrates an attempt to corrupt the Ecuadorian justice process.

Kenneth Anderson has details about today's Second Circuit decision in Kiobel v. Royal Dutch Petroleum. See also Julian Ku.

Update: More from Kenneth Anderson.







Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.