Supreme Court Preview: Don’t Try This At Home, Kids—Carol Bond, Domestic Disputes And The Limits Of Congressional Authority

It’s rare that someone who sticks chemicals in someone else’s mailbox engenders much sympathy.  Of course, it’s rare for someone to stick chemicals in someone else’s mailbox in the first place, so maybe we shouldn’t draw too many conclusions. 

Not much about Bond v. United States is typical, including the fact that the case is heading to the Supreme Court for a second time.  But by the spring, what started as a spat over an unintended pregnancy could become the defining case on the limits of Congress’s power to pass laws in support of treaties.

Argument Date: November 5, 2013

What Happened?: Carol Bond, who worked for chemical manufacturer Rohm and Haas, found out her best friend was pregnant with her husband’s baby.  To get revenge, she took chemicals—some stolen from her employer, others bought over the Internet—and applied them to her friend’s mailbox, car-door handles and house doorknob.  The friend suffered one chemical burn on her thumb. 

Bond was clearly guilty of various state crimes, not to mention bad judgment.  But the federal government took the unusual step of charging her with two counts of acquiring, transferring, receiving, retaining or possessing a chemical weapon, in violation of the Chemical Weapons Convention Implementation Act of 1998, which implements the 1993 Chemical Weapons Convention.  (We’ll go out on a limb here and guess that the authors of the treaty did not have jilted wives in mind when they drafted it).

Bond pleaded guilty but reserved the right to challenge the constitutionality of the law.  She lost in the Third Circuit, which said she didn’t have standing to challenge whether Congress overstepped its bounds in passing a law that applied to her conduct.  The Supreme Court disagreed and sent the case back to the Third Circuit.  Looking at the merits, the Third Circuit again ruled against Bond, holding that because the law implemented a valid treaty, it could not be struck down as exceeding Congress’s power.  Bond appealed again.

Questions Presented: (1) Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.

In English, Please: The Constitution created a federal government of limited powers and left all remaining powers to the states.  Among the powers of the federal government, the president (with approval of the Senate) can make treaties.

Congress must sometimes pass additional laws for the United States to comply with its treaty obligations.  But what happens when the laws Congress passes to ensure the United States is living up to its treaty commitments intrude into areas that are generally left to the states?  If the treaty is valid, does that automatically mean the law Congress has passed to support it is also valid? 

Court Below/Winner: Third Circuit/Government

What the Defendant Is Saying:  “Especially in light of the broad subject matters addressed in modern treaties, the government’s argument would allow the agreement of the President, the Senate, and a foreign nation to render the Framers’ careful process of enumerating Congress’ limited powers for naught.”

What the Government Is Saying: “Petitioner’s attempt to carve out ‘local’ conduct from the scope of the Treaty Power echoes arguments that have been made—and rejected—since the Founding.”

Why It Matters: As Bond points out, treaties today cover a broad array of subjects and often include criminal provisions.  This case could go a long way towards setting the boundaries of Congress’s power to criminalize conduct implicated by treaties that is usually regulated by state law.  More broadly, the case could be an important test of the Roberts Court’s views on the balance between federal and state power.