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Some Reflections on the Misreading and Miswriting of Statutes

Today's opinion in Bond v. United States quotes Justice Felix Frankfurter's classic article, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947).  I have modified that title a bit for this post.

In Bond, the Court "ducked" the constitutional question of whether Congress had the authority to make a federal case out of an ordinary assault perpetrated by chemical means, which would normally be a purely state case, in order to implement the international Convention on Chemical Weapons.  The Court did so by finding that the statute doesn't actually reach Ms. Bond's conduct at all, in the process plowing some difficult ground in the field of statutory interpretation.

I had previously posted on this case in January 2013, when the Court took the case up, and last October, when the Court heard oral argument.  As previously noted, Carol Bond's "husband and best friend had an affair, resulting in the friend's pregnancy.  Bond was certainly justified in being angry and taking action, but poison was over the top.  That is a crime for which she should have been prosecuted and punished -- by the Commonwealth of Pennsylvania" not the federal government.  Today the Supreme Court agreed unanimously, but disagreements as to why explain why this case took so long.

"Hard cases make bad law," it is often said.  This case exemplifies how bad laws make hard cases.  We begin with treaty negotiators botching the drafting process, with Congress meekly following suit.  The result is a mess. 
Can and should Congress make it a federal crime to use or traffic in chemical weapons?  Sure.  These are instruments of war of the worst kind and of terrorism.  That is a proper subject for federal legislation and for international action such as treaties.

The problem lies in the exceptionally poorly written definition of chemical weapons.  The definition is overbroad to an absurd degree, embracing vastly more than any rational person would consider a proper definition, and then scooping out a broad, vague "exception" that tries, unsuccessfully, to carve out the excess.

"Chemical weapon" is defined as simply a toxic chemical or its precursors, but with an exception for toxic chemicals intended for peaceful purposes.  It gets worse.  "Toxic chemical" is defined as

any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. The term includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.
That definition is so bad that even the Justices don't seem to realize how bad it is.  Practically every chemical can cause death under some circumstances.  Oxygen is the chemical most necessary for life, the one we can't live without for more than a very short time.  Yet oxygen is toxic at high enough concentrations.  Number two on the life-essential chemical list is water.  Water, also, becomes a poison when taken to extremes.

Yesterday my grandchildren and their cousins were shooting each other with water guns.  They were therefore using a "toxic" chemical as defined by this statute.  This "toxic" chemical is a "chemical weapon" unless "intended for a purpose not prohibited under this chapter" which is "[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity."  I suppose children's play is an "other activity," but is it "peaceful"?  There seemed to be plenty of malice aforethought, and one little guy ended up crying.

The chemical weapons statute probably doesn't reach the water guns, but the mere fact that I have to hedge that with "probably" is proof that the literal wording of this statute is so preposterously overbroad that it is absurd.  So what to do?

Chief Justice Roberts, writing the opinion of the Court, notes some unexceptional principles.  When confronted with an argument that an Act of Congress is unconstitutional, the Court first examines the statute to see if it can be construed in a way to avoid the constitutional problem.  Also, federal statutes are assumed not to intrude on areas of law reserved to the states if they do not clearly say so.  These kinds of local crimes are considered quintessentially state matters.  "We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute's expansive language in a way that intrudes on the police power of the States."

How clear?  At this point, CJ Roberts gets into what I call the "Humpty Dumpty definition problem."  That name comes from a famous passage from Lewis Carroll's Through the Looking Glass that has been quoted so much it has become cliche, but I'll quote it here again anyway.

'I don't know what you mean by "glory",' Alice said.

Humpty Dumpty smiled contemptuously. 'Of course you don't -- till I tell you. I meant "there's a nice knock-down argument for you!"'

'But "glory" doesn't mean "a nice knock-down argument",' Alice objected.

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean -- neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master -- that's all.'

Drafters of legislation, as well as treaties, contracts, wills, and other legal documents, sometimes need to define a word in terms more precise or sometimes somewhat different than the common meaning of the word.  It is quite another thing -- and a thoroughly bad idea -- to give a term a definition for the purpose of one document that is not at all what the term is normally understood to mean.

Does a sharp variance between the normal meaning of a term and the canned definition matter in statutory interpretation?  CJ Roberts says, "In settling on a fair reading of a statute, it is not unusual to consider the ordinary meaning of a defined term, particularly when there is dissonance between that ordinary meaning and the reach of the definition."  However, as Justice Scalia notes in his "concurring in the judgment" opinion, this principle and the others noted above are used only to resolve an ambiguity that appears on the face of the statute.  They are not generally, or properly, used when the language Congress enacted is clear and unambiguous on its face.

So what's the final result?

If section 229 reached Bond's conduct, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Absent a clear statement of that purpose, we will not presume Congress to have authorized such a stark intrusion into traditional state authority.
Okay, that ends this case.  What about the next case?  What conduct does the statute reach, if we can't go by the literal meaning of the words?  The opinion of the Court doesn't say.  Justice Scalia thinks the statute as judicially rewritten is void for vagueness.  "No one should have to ponder the totality of the circumstances in order to determine whether his conduct is a felony."  If he is right, the Court has avoided one constitutional difficulty merely to raise another.

Yet Justice Scalia's opinion suffers a similar flaw.  He would take the statute at face value and decide "whether the Act is constitutional as applied to petitioner."  No, he says.  Okay, what about the next case?  Is a statute that is clear on its face but unconstitutional as applied to a vaguely defined subset of the cases it nominally covers any less deficient in its failure to give fair warning as to what conduct is prohibited?

There is no good way out.  The majority has intentionally misread a statute to avoid a result that most of the members of Congress had no idea would result from their enactment of a statute against "chemical weapons."  Yet it is exceedingly dangerous for courts to go around departing from the language Congress enacted without any actual ambiguity in that language.  "The question is which is to be master."  Congress is supposed to be master, at least within constitutional limits.  Let us hope that the avoidance in this case is sparingly applied, only where the statute as written actually would be unconstitutional.

What about the drafting of future statutes?  Justice Scalia says,

Who in the world would have thought that a definition is inoperative if it contradicts ordinary meaning? When this statute was enacted, there was not yet a "Bond presumption" to that effect--though presumably Congress will have to take account of the Bond presumption in the future, perhaps by adding at the end of all its definitions that depart from ordinary connotation "and we really mean it."
I have a better idea.  Every legislative body in the country should adopt a strict rule against the use of Humpty Dumpty definitions in its statutes.  Choose a word that comes close to the meaning you want and limit the definitions sections to making that approximation more precise, not completely redefining terms.


All this might be over my head, but is there really a need to prosecute a person for basic criminal conduct under a statute like this?

Stupid law school hypothetical - Let's say, I decide I want to cause some harm to my cheating spouse like our defendant here.

I've just finished watching a History channel show on World War I and decide it'd be a swell idea to make some mustard gas.

I mix up some bleach and ammonia (feel free to correct me, if I'm wrong on the chemical formula) and successfully make some mustard gas.

I deploy this on my cheating spouse and she gets burned a bit.

Wouldn't it just be easier to prosecute me on standard laws against assault with a deadly weapon, attempted murder etc...?

My point is, even if I used a "recognized" chemical weapon, it seems this sort of criminal conduct minor like the case at bar or more severe is adequately covered by common law type crimes.

Correct, IHMO.

Statutes like this are needed for people who, e.g., manufacture chemical weapons and sell them to despotic regimes or terrorists, and for terrorists who possess them with plans to use them for mass killings.

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