It defines “chemical weapon” in relevant part as “[a] toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose.” “Toxic chemical,” in turn, is defined in general 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.” Finally, “purposes not prohibited by this chapter” is defined as “[a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity,” and other specific purposes.
Justices Scalia, Thomas, and Alito each wrote opinions concurring in the judgment, reaching the result for a different reason. They concluded the statute clearly did cover Bond’s conduct. (Justices Scalia and Thomas joined each other’s opinions fully, and Justice Alito joined portions of Justice Scalia’s and Thomas’s opinions.) Among other things, they concluded that the majority’s limiting construction was both inconsistent with the text of the statute, and itself unclear in scope (some paragraph breaks added):
A criminal statute must clearly define the conduct it proscribes. If it does not “ ‘give a person of ordinary intelligence fair notice’ ” of its scope, United States v. Batchelder, 442 U. S. 114, 123 (1979), it denies due process.The new §229(a)(1) fails that test. Henceforward, a person “shall be fined …, imprisoned for any term of years, or both,” §229A(a)(1) — or, if he kills someone, “shall be punished by death or imprisoned for life,” §229A(a)(2) — whenever he “develop[s], produce[s], otherwise acquire[s], transfer[s] directly or indirectly, receive[s], stockpile[s], retain[s], own[s], possess[es], or use[s], or threaten[s] to use,” §229(a)(1), any chemical “of the sort that an ordinary person would associate with instruments of chemical warfare” (emphasis added).Whether that test is satisfied, the Court unhelpfully (and also illogically) explains, depends not only on the “particular chemicals that the defendant used” but also on “the circumstances in which she used them.” The “detergent under the kitchen sink” and “the stain remover in the laundry room” are apparently out — but what if they are deployed to poison a neighborhood water fountain? Poisoning a goldfish tank is also apparently out, [see majority opinion] at 17, but what if the fish belongs to a Congressman or Governor and the act is meant as a menacing message, a small-time equivalent of leaving a severed horse head in the bed? See ibid. (using the “concerns” driving the Convention — “acts of war, assassination, and terrorism” — as guideposts of statutory meaning).Moreover, the Court’s illogical embellishment seems to apply only to the “use” of a chemical, but “use” is only 1 of 11 kinds of activity that the statute prohibits. What, one wonders, makes something a “chemical weapon” when it is merely “stockpile[d]” or “possess[ed]?” To these questions and countless others, one guess is as bad as another.No one should have to ponder the totality of the circumstances in order to determine whether his conduct is a felony. Yet that is what the Court will now require of all future handlers of harmful toxins — that is to say, all of us. Thanks to the Court’s revisions, the Act, which before was merely broad, is now broad and unintelligible. “[N]o standard of conduct is specified at all.” Before long, I suspect, courts will be required to say so.
But the concurring Justices concluded that the statute exceeded Congress’s power, because of their conclusions that the Treaty Clause doesn’t empower Congress to regulate domestic behavior that would be outside Congress’s power absent a treaty — a matter that has been hotly contested. (In the process, Justice Scalia’s concurrence, joined by Justice Thomas, cited our own Nick Rosenkranz’s “Executing the Treaty Power,” 118 Harv. L. Rev. 1867 (2005), and Will Baude’s “Rethinking the Federal Eminent Domain Power,” 122 Yale L. J. 1738 (2013).) The other Justices didn’t directly express an opinion on this constitutional question, because their interpretation of the statute made such an opinion unnecessary in their view.