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David Sloss: Bond v. United States: Choosing the Lesser of Two Evils
Michael Ramsey

David Sloss (Santa Clara University - School of Law) has posted Bond v. United States: Choosing the Lesser of Two Evils (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract: 

In Bond v. United States, Carol Anne Bond used toxic chemicals in an attempt to poison her husband’s lover. The federal government prosecuted Bond for violating the Chemical Weapons Convention Implementation Act of 1998 (the “CWC Act”). Congress enacted the CWC Act to implement U.S. obligations under the Chemical Weapons Convention (CWC), a multilateral treaty signed in 1993 that is designed to address the global threat posed by chemical weapons. Bond challenged the constitutional validity of the federal statute and urged the Court to overrule Missouri v Holland, a 1920 case holding that the combination of the Treaty Power and the Necessary and Proper Clause empowers Congress to enact treaty-implementing legislation that would exceed the scope of Congress’ Article I powers in the absence of a treaty. Chief Justice Roberts, writing for the majority, avoided the constitutional question by adopting a narrow construction of the statute. Justice Scalia, writing for himself and Justice Thomas, would have overruled Holland and invalidated the CWC Act.

This essay makes two main points. First, the majority’s interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding about the design of the underlying treaty. Second, Justice Scalia’s construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia’s view would seriously harm the federal government’s ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia’s constitutional error would be far more damaging than the majority’s statutory error, the majority’s statutory misinterpretation is the lesser of two evils.

Another paper for the Notre Dame Law Review's outstanding symposium on Bond.