On February 22, while I’ll be locked in a lecture hall taking the bar exam, the Supreme Court will be hearing oral argument in what may be the most salacious suit of the term. Bond v. United States appears so factually, legally, and politically wild that it almost makes me question my taking that term off during my 2L year: had I stayed at Georgetown rather than go to ABC News, I would have graduated in May, taken the bar in July, and been able to be at the Court in February to hear the lawyers tell the tale of a scorned woman seeking solicitude for her hell-fury under the protection of the Tenth Amendment.
In his brief for Carol Anne Bond, Paul Clement tells the story:
In 1995, petitioner moved with her mother and sister to the United States, where she became very close friends with Myrlinda Haynes, a woman who was also a Barbados native. Haynes owned a home in nearby Norristown, and petitioner came to consider and treat Haynes as a sister.
In 2006, Haynes announced that she was pregnant. Unable to bear a child of her own, petitioner was excited for her closest friend. Her excitement did not last, however, for petitioner soon discovered that her own husband was the child’s father. This double betrayal brought back painful memories of her own father’s infidelities and caused petitioner to suffer an emotional breakdown…
In the midst of this emotional breakdown, petitioner became fixated on punishing Haynes for her betrayal. Petitioner took a bottle of 10-cholo-10H-phenoxarsine (an arsenic-based chemical) from her employer, the chemical manufacturer Rohm & Haas, and she purchased a vial of potassium dichromate through Amazon.com from a photography equipment supplier. Petitioner knew that the chemicals were irritants and believed that, if Haynes touched them, she would develop an uncomfortable rash. Both chemicals are toxic and, if ingested or exposed to the skin at sufficiently high doses, can be lethal.
According to the government, petitioner went to Haynes’s home on several occasions between November 2006 and June 2007 and spread chemicals on Haynes’s car door handle, mailbox, and apartment doorknob.
These facts alone are enough to send reporters rushing to the Court, but the love triangle and poisonous revenge are backed up by crazy law and strange meta-bedfellows.
Rather than be subjected to a state charge of assault, Bond’s use of toxic chemicals against her now-former best friend got the Feds involved. They charged her with a violation of a federal statute that Congress passed in obligation to an international treaty entitled, “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.” A grand jury indicted her under the statute’s sweeping plain language – the chemicals fit the law’s definition of banned substances “not intended by defendant Bond to be used for a peaceful purpose” – and she pled guilty after the federal judge rejected her constitutional claims against the law as applied to her.
And it gets weirder. The scorned woman turned terrorist-in-law invoked her Tenth Amendment rights, something that’s only recently come back in vogue with the rise of the Tea Party and the Affordable Care Act. Bond argued to the Third Circuit that the federal criminal law used to convict her was beyond Congress’s Article I authority and therefore invaded the province of rights reserved to the states and the people. The appeals court did not reach the merits, ruling instead that Bond, as an individual, did not have standing to bring her Tenth Amendment claim absent the state or its officials as parties to her suit.
By the time Bond petitioned the Court for review, however, the United States switched sides, officially telling the justices to let her sue. The Solicitor General urged the Court to GVR–grant, vacate, remand–the case without oral argument. The Court disagreed and ordered oral argument.
With the Tenth Amendment and Article I limits swirling in the air these days, it is striking to see the SG in this case on the same side as Bond’s other amici: Alabama, Colorado, Florida, South Carolina, Texas, and Utah (all parties to the health care challenge awaiting decision in Florida); CATO Institute; Gun Owners of America; and the Eagle Forum.
Ultimately, this case is about Bond’s standing to bring her Tenth Amendment challenge, not the merits of that challenge. Still, this case is a thorny thicket of jurisprudential themes. Textually, the law does apply to Bond. But will the patent absurdity of this law’s use against Bond compel the Court’s more textualist justices to put aside their interpretive principles? Perhaps because this question is embedded in a contest between conservative values–deference to federal law and order efforts versus the commitment to a limited federal government–the Court’s right flank may with an easier conscience forego the letter of the law for its more equitable spirit towards Bond.
The oral argument itself may simply be a formality so that someone may argue for the wisdom of the position that the United States has since abandoned rather than GVR the case without the dignity of a proper adversarial process. That someone who the justices assigned to adopt the orphaned argument for the Government is Stephen R. McAllister, former state solicitor general of Kansas and dean of the the University of Kansas’s law school. Accordingly the advocates, like the arguments they will be making, will embody a clash of legal conservatism: McAllister and Clement launched their careers from clerkships in the chambers of Justices Thomas and Scalia, respectively.
Bond brings layer upon layer of exciting stuff, from its own facts and law to its place in the moment’s larger legal-political milieu. I guess in lieu of attending the oral argument, I will just have to inspire myself with Bond’s focused rage and sophisticated legal arguments so to unleash the fury on the bar exam.
Conservative principles of law-and-order and limited government clashed this morning in United States v. Comstock. At issue was the constitutionality of 18 U.S.C. § 4248, which provides for the federal government’s civil commitment of sex offenders after they have served out their full sentences in federal prisons.
On the one hand, section 4248 keeps off the streets convicted sex offenders deemed by federal authorities to be a continuing threat when they otherwise would be released back into the state where they committed their offense. This much seems wise: if a state is unwilling to exercise its police and public welfare powers by rehabilitating its violent sexual offenders upon their release from federal prisons, the federal government surely shouldn’t just let those deemed a continuing danger to society roam free among, well, society. This is the United States’ position in Comstock.
On the other hand, section 4248 relies on provisions of the constitution that may not authorize such federal action, however wise or well-intentioned. Specifically, Comstock argues that the Commerce Clause and the Necessary and Proper Clause of Article I, both relied upon by Congress in creating section 4248, do not cover civil commitment of criminals when the federal government’s power, through the prison sentence has been exhausted.
Solicitor General Elena Kagan rested her argument for the United States largely on the Necessary and Proper Clause, with barely a nod to the Commerce Clause. That much in itself was a victory for the late Chief Justice Rehnquist’s “federalism revolution,” which, to varying degrees of success, sought to limit the expansive reach of the Commerce Clause to issues more closely connected to interstate commerce than the permissive post-1937 Courts often allowed.
But only Justice Scalia truly seemed to believe that 4248 also strained the bounds of the Necessary and Proper Clause to maintain law and order. Justice Scalia looked to the text of the Necessary and Proper Clause, finding nowhere that it authorizes the federal government to act according to what is “necessary and proper for the good of society.” Rather, he maintained that the clause enabled the federal government’s actions that were necessary and proper to execute another power given to the federal government by the constitution itself. As such, he agreed with what would be the defendant’s argument that the states and states alone are responsible federal prisoners whose sentences have run.
Kagan countered that indefinite civil commitment of sexual offenders under 4248 was necessary and proper to the “responsible exercise of operating the criminal justice system.” On this point–that the federal government needed its own civil commitment regime as a “backstop” for when the state governments refused responsibility for released federal prisoners–Justices Alito and Breyer seemed sympathetic. They peppered G. Alan DuBois, a veteran federal public defender and counsel for Comstock, with hypotheticals about the constitutionality of the federal government’s ability to deal with prisoners who grows more violent while in prison or, in the opposite instance, is injured in jail in an attack by another prisoner as his sentence ends. Per these and several other hypotheticals, Alito and Breyer both seemed to believe that the federal government does have the power to retain custody over prisoners that it deems dangerous to public health and safety, or to themselves, upon their scheduled release from federal custody.
As Justice Breyer persisted in exploring the federal government’s power to set up, for example, national mental hospitals, Justice Scalia clutched his head in frustration: “No, No, No! The Issue is not setting up hospitals, it’s detaining and committing people!” Scalia simply could not believe that any governor or state attorney general, upon receiving a note or a call from the federal government, would deny his or her obligation to civilly commit a sexual offender and rather face the electoral consequences of letting such a criminal roam the state without rehabilitation. Justice Stevens then took the opportunity to look at the statute from the opposite end of Scalia’s looking glass, suggesting that the Court look to the wisdom of the statute and “assume there are cases out there that there is no solution” like Scalia’s belief that all states would naturally accept responsibility for rehabilitating federal prisoners released within their borders.
But DuBois stood firm against Stevens’, as well as Justice Ginsburg’s, apparent approval of the federal “backstop” when states refuse to cooperate. Chief Justice Roberts tested DuBois’s position, asking that “if a state says no” to receiving a released, but still dangerous, federal prisoner, “then the federal government says, ‘you have to’?” DuBois dug in: “Yes, the Constitution requires it.”
Scalia remained astonished that the other justices even entertained the federal government’s claims of responsibility. Noting that states have involuntary commitment procedures, he wondered why the federal government could not simply fund an office that brings state proceedings for involuntary commitment. “They should do that!” Dubois actually shouted in reply. When Stevens tried to get the Court back to assessing whether 4248 itself was constitutional, Scalia shot back that the statute “isn’t even necessary!”
Towards the end of the argument, Justice Sotomayor interjected with a compromise, asking DuBois if it would be constitutional for a judge to mandate civil commitment for a sexual offender during his trial’s sentencing phase. If such a mandate contained protections to avoid turning indefinite commitment into interminable detention, then it would be constitutional, replied DuBois.
Sotomayor’s trial-judge pragmatism may persuade all but Scalia (and possibly the ever-silent Justice Thomas) to side with public safety over rock-ribbed federalism and uphold 4248 as constitutional. If this happens, then Scalia, confronted with Sotomayor’s aggressive questioning this term and her possible coup over his Melendez-Diaz decision in yesterday’s Briscoe v. Virginia, may finally be meeting his match.
UPDATE: Read the official transcript here and use the comments section to call me out on my own transcription errors.