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A Decision! Kind of….

Tuesday, June 03, 2014 - 06:53 PM

(Photo Credit: Mark Fischer/flickr)

Yesterday the Supreme Court issued their opinion in Bond v United States.

Maybe you remember a while back we made a short about this case called, "Sex, Ducks, and The Founding Feud."

If you don't remember, it’s a story about a Supreme Court case involving a woman who was charged with violating the International Chemical Weapons Treaty Implementation Act when she sought revenge against her husband's lover by poisoning her over 24 times. (Click here for the full story.)

In a unanimous vote, the court decided that Carol Anne Bond did NOT violate the Chemical Weapons Implementation Act of 1998.

You might also remember that this was NOT the question that court-watchers were hoping they'd answer.

That question was: can the federal government use a treaty to make laws about crimes that would normally be within a state's jurisdiction? (Like poisoning) Most of the debate around this case was about whether or not the treaty making power can be used unconstitutionally.

This decision did nothing to answer that question.

According to Chief Justice Roberts the court didn’t answer that question because "the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”

What that means is that if the court can come to a decision about the case WITHOUT saying anything about whether it's constitutional, they will. So therefore Carol isn’t a chemical weapons combatant, she’s just a poisoner, and let’s not talk about the constitution.

But Roberts doesn’t completely neglect the federalism concerns. He says, “The background principle that Congress does not normally intrude upon the police power of the States is critically important.”

Which is fairly clear but can be translated to: we have this backdrop of federalism; it’s assumed that our laws live in a world where the federal government can’t just reach into your backyard. UNLESS the Congress meant for a law to bypass our normal assumptions of state versus federal, and if that were the case Congress would’ve made that very clear in the law.

Roberts said that using this treaty implementation act against Carol Bond “would transform a statute concerned with acts of war, assassination and terrorism into a massive federal anti-poisoning regime that reaches the simplest of assaults.”

Justice Scalia responded to this sidestepping of the constitutional question with strong words - "We should not have shirked our duty…” to review the treaty making power. “…We should have welcomed and eagerly grasped the opportunity - nay, the obligation - to consider and repudiate it."

So after all the debate and anticipation of this ruling, we are no closer to knowing if the federal government can constitutionally use a treaty to bypass a state's criminal law.

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Comments [2]

Philip H from Portland, OR

What Scalia is saying at the end, in effect, is "damn the judicial system and judicial restraint and answering only questions that are actually presented to you." If she did NOT violate the Treaty, the Supreme Court has no right to review the constitutionality of Treaty powers. This is a perfect example of Scalia's judicial activism and you should call it out, Ms. Padgett.

It was a Decision. Not just "Kind Of". The Avoidance Doctrine. Look it up.

Nov. 07 2014 10:44 PM
Mike Garrett from Nova Scotia

Is not the constitutionality of this or that a little beside the point at this stage? The herd is going to graze on and the lawyers are going to go on twisting things like Hollywood until the crash or defeat. That is the great thing about 11 September, nobody with half a brain could ever take any of it at face value again.

Aug. 14 2014 12:47 AM

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