At first blush, Bond is something of a disappointment. The Chief Justice, in his never-ending effort to achieve unanimity, in the words of Justice Scalia, rewrote the statute to avoid the underlying constitutional issue, as he did in NFIB. So the Missouri v. Holland dictum still stands, and the Court implies, slightly, that its reasoning is correct.
Fortunately, we have no need to interpret the scope of the Convention in this case. Bond was prosecuted under section 229, and the statute—unlike the Convention— must be read consistent with principles of federalism inherent in our constitutional structure.
Robert, casually suggests that the Convention is not subject to the limitations of federalism. In other words, Holmes is (gasp) right.
Though, is some other favorable, pro-federalism language throughout the opinion. Roberts seems to be trying to create a presumption of statutory interpretation that construes statutes in a way so as not to violate federalism. This is effectively his opinion in NFIB. So though the principles of federalism are not reached, the law itself is invalidated.
Here the Chief flirts with federalism.
Even if the treaty does reach that far, nothing prevents Congress from implementing the Convention in the same manner it legislates with respect to innumerable other matters—observing the Constitution’s division of respon- sibility between sovereigns and leaving the prosecution of purely local crimes to the States. The Convention, after all, is agnostic between enforcement at the state versus federal level.
And suggests that federalism places many limitations on all federal interactions with the states:
Among the background principles of construction that our cases have recognized are those grounded in the rela- tionship between the Federal Government and the States under our Constitution. It has long been settled, for ex- ample, that we presume federal statutes do not abrogate state sovereign immunity, Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985), impose obligations on the States pursuant to section 5 of the Fourteenth Amendment, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 16–17 (1981), or preempt state law, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947).
Closely related to these is the well-established principle that “‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law over- rides’” the “usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (quoting Atascadero, supra, at 243). To quote Frankfurter again, if the Federal Government would “‘radically readjust the balance of state and national authority, those charged with the duty of legislating [must be]reasonablyexplicit’”aboutit. BFPv.ResolutionTrust Corporation, 511 U. S. 531, 544 (1994) (quoting Some Reflections, supra, at 539–540; second alteration in origi- nal). Or as explained by Justice Marshall, when legisla- tion “affect[s] the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters in- volved in the judicial decision.” Bass, supra, at 349.
We have applied this background principle when con- struing federal statutes that touched on several areas of traditional state responsibility. See Gregory, supra, at 460 (qualifications for state officers); BFP, supra, at 544 (titles to real estate); Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 174 (2001) (land and water use). Perhaps the clearest example of traditional state authority is the punishment of local criminal activity. United States v. Morrison, 529 U. S. 598, 618 (2000). Thus, “we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bass, 404 U. S., at 349.
Here is this canon of construction he tries to articulate:
These precedents make clear that it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute. In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless read- ing; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Con- gress meant to reach purely local crimes, before interpret- ing the statute’s expansive language in a way that in- trudes on the police power of the States.
When a statute is ambiguous, interpret it to be consistent with federalism. Imagine that!
There is, for good measure, a citation to Justice Kennedy’s opinion in Bond I:
In light of all of this, it is fully appropriate to apply the background assumption that Congress normally preserves “the constitutional balance between the National Govern- ment and the States.” Bond I, 564 U. S., at ___ (slip op., at 10). That assumption is grounded in the very structure of the Constitution. And as we explained when this case was first before us, maintaining that constitutional balance is not merely an end unto itself. Rather, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individ- ual from arbitrary power.” Ibid.
It is up for Pennsylvania to decide:
Here, in its zeal to prosecute Bond, the Federal Government has “displaced” the “public policy of the Commonwealth of Pennsylvania, enacted in its capaci- ty as sovereign,” that Bond does not belong in prison for a chemical weapons offense. Bond I, supra, at ___ (slip op., at 12)
In the end, it’s not fantastic, but it’s not terrible.
Update: Richard Re reads some tea leaves in the Chief’s opinion for Yates v. United States (the anti-shredding fish case):
Looking ahead, the decision in Bond is likely a harbinger for the recently granted case Yates v. United States, where a defendant was convicted of violating Sarbanes-Oxley’s “anti-shredding” prohibition by throwing illegally caught fish off his boat. Critics have viewed Yates as an instance of federal prosecutorial overreach accomplished by reading statutory definitions in an unnaturally broad way. Surprisingly, the statutory issue in Yates will be informed by the Court’s most recent brush with the treaty power.