A few years back, Carol Bond decided to literally burn her husband’s lover, a woman who had figuratively burned her. Besides carrying on (or as a direct consequence of) an affair with Mr. Bond, the lover carried Mr. Bond’s child. To balance the scales of justice, Carol Bond used a concoction of potassium dichromate and 10-chloro-10H-phenoxarsine to paint door nobs, mail boxes, and sundry other objects the lover might touch. Lover girl suffered a thumb burn as a result. Mrs. Bond? Well, her troubles had just begun.
Federal prosecutors charged Bond with two counts of mail theft and, surprisingly, two counts of possessing and using a chemical weapon, in violation of section 229(a) of the Chemical Weapons Convention Implementation Act, a law Congress enacted pursuant to a chemical weapons treaty. Bond was convicted on all counts but appealed her conviction under the Chemical Weapons law–all the way to the Supreme Court, as they say. Twice. Today the Court overturned her conviction, saying
In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.
Unfortunately, the Court did not see fit to use this opportunity to rein in Congress’s power, something on which Justice Scalia had a few things to say in his concurring opinion, the gist of which you can get by reading his opening salvo (citations omitted):
Somewhere in Norristown, Pennsylvania, a husband’s paramour suffered a minor thumb burn at the hands of a betrayed wife. The United States Congress—“every where extending the sphere of its activity, and drawing a ll power into its impetuous vortex”—has made a federal case out of it. What are we to do?
It is the responsibility of “the legislature, not the Court, . . . to define a crime, and ordain its punishment.” And it is “emphatically the province and duty of the judicial department to say what the law [including the Constitution] is.” Today, the Court shirks its job and pe forms Congress’s. As sweeping and unsettling as the Chemical Weapons Convention Implementation Act of 1998 may be, it is clear beyond doubt that it covers what Bond did; and we have no authority to amend it . So we are forced to decide—there is no way around it—whether the Act’s application to what Bond did was constitutional.
Of course, Scalia (and Thomas and Alito) would have ruled the law unconstitutional. Justice Roberts, writing for the majority thought otherwise–he seems to be re-writing a lot of laws for Congress these days. And so, Congress, expansive power at the ready, lives to ride another day.