Poisoning, chemical warfare, and the Controlled Substance Act

If the Supremes strike down using the Treaty Power to extend the reach of federal criminal jurisdiction in the case of the woman who tried to poison a romantic rival and was convicted of waging chemical warfare, where does that leave the Controlled Substances Act?

A woman tries (unsuccessfully) to poison her husband’s lover. The local prosecutor declines the case. The U.S. Attorney prosecutes under a statute implementing the Chemical Weapons Convention. The poisoner pleads guilty, reserving the Constitutional question, and appeals. The Supreme Court grants cert., and the oral argument features former SG Paul Clement for the poisoner and SG Don Verilli for the government.

The question is whether a perfectly ordinary criminal case can be federalized via the treaty power. Clearly, a general federal statute against homicide, or poisoning in particular, wouldn’t be within any of the enumerated powers of the Congress. But the President undoubtedly has the power to sign a treaty, and if ratified by two-thirds of the Senate, a treaty has the force of law. The chemical weapons treaty, like some others, requires each state party to enact appropriate domestic criminal legislation, and in this case the law passed by Congress more or less tracks the language of the treaty. (And yes, in case you’re wondering, the use of pepper spray and tear gas by police is specifically exempted. Doesn’t it make you feel good to know that cops can lawfully do to our own people things it would be a war crime to do to enemies?)

The objection raised by Clement is that the President and two-thirds of the Senate should not, by signing a treaty with Rinky-Dink and Tabasco, to be able to make any arbitrarily selected element of domestic policy a federal matter, thus gutting the doctrine of enumerated powers. That’s a reasonable enough concern on its surface, though I wouldn’t be surprised if concern that, e.g., women’s-rights legislation might be validated in that way underlay Clement’s willingness to take up the poisoner’s defense.

The whole thing sounds like a law-school hypothetical, without much practical interest. Maybe the Justices will duck by ruling that you can’t prosecute someone for “chemical warfare” unless she does something more … well, warlike … than trying to poison a personal enemy.

But if the Justices were to decide to limit this use of the treaty power, that decision might have an effect that (so far as I can tell from the reports) didn’t come up in the briefs or the oral argument.

It is not obvious on its face how the Controlled Substances Act could be constitutional except as applied to drugs carried across state lines; it certainly would have surprised Mr. Madison to learn that he and his colleagues had authorized the Congress to criminalize growing a plant in your own windowbox and smoking its leaves. That would have seemed to them an exercise of the police power, and thus the province of the states.

When the courts upheld the CSA, they did so partly on Commerce Clause grounds and partly on Treaty Power grounds. [I can’t find the original case; if you can, please say so in comments, or email me. But the Commerce Clause argument is repeated in the medical-marijuana case Gonzales v. Raich.]

Tracking Wickard v. Filburn, the Commerce Clause argument is is that, since production within a state might displace imports, it thereby becomes entangled with interstate commerce. But this is – if he Justices will pardon my French – complete, economically illiterate bullsh*t. In Wickard, the goal of the law was to support crop prices in order to maintain farmers’ incomes. So it was reasonable to say that someone who grew his own wheat to bake his own bread was removing his little bit of the demand from the market, thus (almost infinitesimally) reducing wheat prices nationally, defeating the purpose of the law.

But it is not the purpose – though it is the effect – of the Controlled Substances Act to provide incomes for drug traffickers. If a cannabis user in California grows her own, the effect on interstate commerce is to reduce the volume of illegal traffic, which can hardly be held to frustrate the purpose of the Controlled Substances Act in controlling interstate and international drug trafficking. (Yes, you could argue that it’s hard to prove the origin of a specific batch of drugs, but that at most might support a law allowing intrastate origin as an affirmative defense.)

So if the Treaty Power argument is no good – and it’s hard to see how it would be good for drugs if it fails for chemical weapons – then the CSA, as applied to intrastate activity, stands on very shaky legs.

Footnote Yes, I should have figured this out when Raich was being briefed, and organized a bunch of my fellow wonks to submit an amicus brief. And yes, Raich’s lawyers should have reached out to ensure that such a brief was written, or tried to distinguish Wickard in their briefs and oral argument. That failure irks me.

Still, I doubt it would have mattered; Scalia in particular seems to regard the constitutionality of the CSA as axiomatic. You can choose to believe that the Republican Caucus of the Court would be as willing to strike down drug laws as it was to strike down gun control and the Violence Against Women Act, but if do so before breakfast you should count that among your Six Impossible Things.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

7 thoughts on “Poisoning, chemical warfare, and the Controlled Substance Act”

  1. I’ve long been disgusted by the federalization of criminal law. But I’m not sure that a Constitutional court can do much about it. The problem, appreciated by the Wickard court, is one of line-drawing. What are the limits of the Commerce Clause, and how do you articulate them in a fashion that does not require constant adjudication by the Supreme Court? If it does require constant adjudication, you’ve just created a super-legislature, which nobody particularly wants, at least in principle. Wickard pretty much said that anything goes involving commerce. This was probably correct, because the alternatives–Supreme Court as economic steward, or practically no Congressional regulation at all–are worse. There are other fields where “practically no Congressional regulation” works pretty well: personal status law is the classic example. But criminal law is a tough case. There is a need for federal criminal law: not all crime is local. But we don’t want federal criminal law to routinely supersede state law.

    The pre-1980’s consensus on criminal law was pretty workable. Congress had a pretty good sense of Constitutional propriety. It occasionally federalized local criminal issues, but the Supreme Court let this slide, because Congress usually didn’t. (And some federalization of local crime is positively useful, especially regarding official corruption, which is very unlikely to be prosecuted by local officials for the obvious reasons.) There was no need to articulate anything, which is good, because subsidiarity works best as a norm, rather than a rule of law. But the War on Drugsâ„¢ and the War on Sex Crimesâ„¢ destroyed this consensus. Congress still doesn’t pass too many laws named after victims, but that’s about all I can say in its favor. It regulates a lot of local crimes these days. Carjacking, for the love of Cthulhu! Gun crimes, in particular, are frequently used as an excuse to federalize cases where the local cops think that the local prosecutors won’t exact enough time from the local laws. (No, Brett, I’m a fan of gun regulation. I’m also a fan of subsidiarity. It’s possible to be both.)

    I don’t view the treaty here as an example of Congressional overreach. At worst, it is an example of prosecutorial overreach. But this case does illustrate a real problem.

    (This comment is slightly off-topic, because the issue in Mark’s case concerns the limits of the treaty power, which involves interbranch structural issues that go well beyond federalism.)

  2. Obviously a side issue, but I remember Jeff MacNelly’s “Rinky-Dink and Tabasco” cartoon well, having cut it out of the newspaper at the time (in the 1970s; I think it was in the Washington Evening Star). I’m afraid it was politically rather, well, retrograde. The scene was the United Nations General Assembly, and most of the representatives there were portrayed as freaks and kooks. The crazed-looking representative of Rinky-Dink and Tabasco had risen and was saying something like “Gentlemen, we have in our midst a dangerous lunatic!” and pointing to an old, respectable-looking gentleman with a white mustache who had dozed off–the representative from South Africa.

    1. Yes, the cartoon was retrograde. But that didn’t make it any less brilliant. I especially liked the uniformed guy (from, IIRC, “Bongo”) with a blue sash reading “Best in Show.”

      But I don’t think it was the Rinky-Dink-and-Tabbascanese ambassador who was pointing and shouting.

      A Google search does not produce either that cartoon or the one about the “Zionism is racism” resolution.

      1. Oh, I agree completely; the cartoon was brilliant. That’s why I cut it out of the paper and stuck it up on the wall. You’re probably right that it wasn’t the R-D & T ambassador pointing and shouting. I, too, googled in vain for an online copy. Had I not changed residences about ten times since I made the cutting, I’d have it still, probably yellowed but still legible.

  3. MK: “the law passed by Congress more or less tracks the language of the treaty.” Isn’t “more or less” doing some pretty heavy lifting here?

    SFIK treaties have to be interpreted – even more than national laws – by reference to their intention. In this case the aim of the Convention (last paragraph of the preamble) is “the complete and effective prohibition of the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons, and their destruction”. Ultimately, chemical weapons are banned because (first paragraph of the preamble) they are “weapons of mass destruction”. Congress has the power to implement a treaty by legislation that goes far beyond it. But the override of state competence granted by the treaty power must surely be limited to the purposes and provisions of the treaty. It’s not a get-out-of jail card for Congress.

  4. Mark,

    Another way of looking at Raich is that – in the wake of several decisions that threatened to gut the Commerce Clause (i.e. Lopez and Morrison) – the Ninth Circuit and the liberal justices found the right issue to bait Scalia and Kennedy into abandoning the rest of the conservatives.

    But as an intellectual matter, it is no more bizarre that the CSA invokes interstate commerce than it was that World War II price boards or civil rights invoked it. The Fourteenth Amendment is the logical vessel for Congress to enact police powers, but the post-Reconstruction Court gutted the Fourteenth Amendment, and no Court since has had the courage to overturn these decisions. Rather, they have simply written tortuous and torturous decisions shoehorning all sorts of legislation into the Commerce Clause.

  5. Under current doctrine (which I don’t really agree with, but is clear), the CSA is constitutional under the Commerce Clause, for the reasons set forth in Raich, and prevails over state law, for the reasons set forth in Oakland Cannibis Buyer’s Cooperative. The Treaty Power doesn’t matter; Congress could pass the CSA even if there were no narcotics treaties.

    The only possible opening left would be for a state to distribute narcotics itself; under Printz and New York v. United States, it may be that the federal government has no power to stop states from distributing whatever narcotics they wish to, and THAT could give rise to the Treaty Power issue if it were held that the states retained this power under the Tenth Amendment. The Miranda case (not the famous one, but the one that deals with the treaty power) held that while the President couldn’t order a state to comply with a treaty, Congress could. If that rule survives the current litigation, perhaps the CSA could prevail even over a state sale of narcotics.

    But that’s totally hypothetical; no state is going to sell narcotics in the near or even distant future, although that would be the correct public policy response to the racist and tyrannical War on Drugs.

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