SCOTUS Soap Opera Challenges Chemical Weapons Treaty


By Shobana Subramanian.

Legal analysts are calling Bond v. United States the soap-opera case that could jeopardize American foreign policy. The story begins with Carol Anne Bond, an immigrant from Barbados who lived in Pennsylvania with her husband and their adopted child. Her life erupted into chaos when she learned that her best friend, Myrlinda Haynes, was pregnant with the child of Bond’s own husband. Promising to make her former friend’s life “a living hell,” Bond attempted to poison Haynes with toxic chemicals, applying them to the inside of Haynes’s mailbox, and various places in her home. Thankfully, one of the chemicals she used, potassium dichromate, is bright orange and was easily spotted. After postal investigators received a complaint from Haynes, Bond was caught and taken into custody.

Instead of being charged with assault and/or harassment by state prosecutors (with a prison sentence of three to twenty-five months), Bond was charged by federal prosecutors with violating the Chemical Weapons Convention Implementation Act (CWCIA), and was sentenced to six years in prison. She contested the sentence on the grounds that the federal prosecutors violated the Tenth Amendment by using the Chemical Weapons Convention (CWC) to infringe upon the states’ police power. After remanding the case to a lower court in 2011, the Supreme Court has once again granted certiorari to the case Bond v. United States, and will now determine the limits, if any, on the federal government’s power to make and enact treaties, as guaranteed by the Constitution (U.S. Const. art. II, § 2, cl. 2).

The treaty agreed upon at the Chemical Weapons Convention of 1993 prohibits signatory states from using or possessing chemical weapons, especially weapons of mass destruction. Nations are expected to enact legislation enforcing the terms of the treaty. In Medellin v. Texas (2008), the Court distinguished between “self-executing” and “non-self-executing” treaties, and said that while the former automatically become the supreme laws of the land, the latter depend on legislation passed by Congress through constitutional means. Congress must therefore navigate its way through preexisting constitutional provisions in implementing the CWC, which include the principle of federalism as defined by the Tenth Amendment.

The body of the Constitution does not give Congress police power, that is, the ability to enact regulatory laws for the general welfare of the people. According to the Tenth Amendment, all powers not explicitly granted to the federal government belong to the states. There are of course a few instances of court-established overlap during which Congress can use the police power, such as in matters concerning federal property, the military, or interstate commerce. Even the police power derived from the Commerce Clause was challenged by United States v. Lopez (1995), when the Court decided that possessing a gun near a school was not interstate commerce, and therefore could not be prohibited by federal law. It follows that in the absence of any clear relation to interstate commerce, the federal government cannot prosecute the use of toxic chemicals to harm another person. Although the respondents could argue that because the petitioner purchased one of the chemicals she used off of, she participated in interstate commerce, the likelihood of that rationalization succeeding in court is very slim, considering the Court’s post-Lopez desire to limit the Commerce Clause.

Federal prosecution of chemical weapons use puts the petitioner’s crime in a very different category than any other type of assault. Under the CWC, her actions amount to “terrorism,” and carry penalties befitting a person who has used such a weapon to try to kill dozens of innocent people. Under the current statute, a person charged with providing material support to someone such as the petitioner can be sentenced to as many as fifteen years in prison, even if no one was killed. The penalties for someone who harbors and conceals such a criminal are on par with those for one who has harbored and concealed a terrorist. Enacting revenge on a single individual for personal reasons does not amount to terrorism, which by definition requires a clear political motive.

Undoubtedly, Bond’s crime falls squarely into the category of simple assault. When Bond last appeared in the Supreme Court, many of the Justices seemed shocked and angry that the federal government would even suggest that Bond’s petty revenge scheme against her husband’s lover amounted to use of a chemical weapon. In one of the oral argument’s most memorable moments, Justice Alito said, “[T]he government’s reading would render vinegar a chemical weapon when deployed to injure a goldfish.” His point was that, instead of narrowing its scope to practices the CWC is actually concerned with, such as chemical terrorism and weapons of mass destruction, the federal statute makes any malicious use of chemicals a federal crime, which surely exceeds any limited police power Congress could obtain from the treaty power.

The respondents use Missouri v. Holland (1920), a case that dealt with the enforcement of a migratory bird treaty with Great Britain, to justify the CWCIA’s appropriation of state rights. The Supreme Court, according to the respondents, decided in 1920 that treaties are the supreme law of the land and overrule any states’ rights objections. The petitioners, on the other hand, argue that that is too broad a reading of Holland, since banning Missouri from killing certain migratory birds does not conflict with a salient state right, especially since the birds do not permanently reside in Missouri or any other state.

And even if the respondents are correct in their reading of Holland, the subsequent case Reid v. Covert (1957) decidedly limited the treaty power by demanding that it submit to the scrutiny of the Constitution. In Reid, federal prosecutors wanted to convict Covert of killing her husband, an American soldier stationed in the United Kingdom. But since the murder occurred in Great Britain rather than the United States, they were forced to do so in military court, to satisfy the terms of an executive agreement between the two nations. The conviction was overruled by the Supreme Court because, treaty notwithstanding, it is unconstitutional to try a civilian in military court. Reid signifies that the government cannot violate the Constitution simply because it has a relevant treaty in hand.

The scope of Holland is therefore limited by the powers forbidden to the federal government. Two years ago, during the oral argument of Golan v. Holder, Justice Scalia told his fellow Justices, “I don’t think that powers that Congress does not have under the Constitution can be acquired by simply obtaining the agreement of the Senate, the President and Zimbabwe.” Justice Scalia’s interpretation places much-needed limits on an exploitable constitutional loophole. His argument at the time was successful, making it likely that the Court will apply the same principle towards Bond.

At times Bond has taken on a political rather than legal importance, especially for states’ rights activists looking for the next in a series of recent victories. In a column for The Washington Post, Senator Ted Cruz (R-TX) expressed his hope that the Supreme Court would use Bond to place limits on what he sees as “federal overreach.” But others on both sides of the aisle fear that a victory for Bond could hurt American foreign policy objectives, since nations would be less confident in America’s ability to keep its promises when the federal government is at the mercy of fifty individual states. The growing importance of international relations, and the federal government’s place in it, does not make the proven benefits of a limited national government any less valuable. For example, political experiments can be conducted at the state level, knowing that the occasional errors associated with such risk will not have vast, overreaching consequences on the entire nation. Citizens can be assured of their liberty knowing their state governments serve as watchdogs to the federal government, and vice versa, allowing them maximum protection from civil rights violations.

Sealing the treaty power will prevent its further abuse. Just as our society cannot be left in anarchy, our government cannot be left without strict rules and regulations by which it is to operate. If Congress has the power to decide how much power it has—which is essentially what a broad interpretation of the treaty power would mean—then the Constitution would become a set of guidelines rather than actual rules. The moment citizens become complacent about separation of powers and checks and balances, they are placed at the mercy of a government that can no longer be controlled. 

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