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November 13, 2013 4:17 AM Poisoning, Chemical Warfare, and the Controlled Substance Act

By Mark Kleiman

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, similar to what happened 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.

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.

[Cross-posted at The Reality-Based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.

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