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Fist-Fighting in Antarctica: Bond v. US and Debates Over Federal Power in the Wilds of Conservative Constitutionalism

November 5, 2013

 It’s not every day that you watch a Supreme Court argument in which Lance Armstrong, Syria, tainted potatoes being given to racehorses, and the specter of Justice Alito poisoning little trick-or-treaters are all featured.  But Bond v. United States is not your average Supreme Court case.

After placing toxic and potentially lethal chemicals on various surfaces on or around the home of her husband’s mistress, Carol Anne Bond, a microbiologist, was prosecuted and convicted under a federal law passed to implement an international chemical weapons treaty.  She has taken her case all the way to the Supreme Court—twice—arguing that her prosecution is beyond the power of the federal government.  With conservative powerhouses such as Senator Ted Cruz, the Cato Institute, and George Will behind her, Bond and her superlawyer, Paul Clement, told the Supreme Court that the federal government violated the Tenth Amendment and general federalism concerns by convicting her and sending her to prison for six years under the legislation implementing the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. 

The United States and its supporters in the case, including the Constitutional Accountability Center, respond that the law under which Bond was convicted is a valid implementation of a valid treaty executed under the federal government’s explicit constitutional authority to enter into international treaties.  As Solicitor General Don Verrilli explained to the Justices in the very first sentence of his presentation, “[t]he framers gave the Federal Government exclusive control over the treaty function to ensure that it could knit the nation together as one and allow it to be fully sovereign in the conduct of foreign affairs.”  The treaty power may intrude on the authority of the states, but that was the point—a feature, not a bug, of the new Constitution in comparison to the feeble Articles of Confederation.

But what about the Tenth Amendment?  That Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  If you only read the parts of the Constitution highlighted in tea-party pocket Constitutions, you might forget that the treaty power is, in fact, expressly “delegated to the United States by the Constitution.”  So, too, is the power to pass laws “necessary and proper” to the execution of those enumerated powers, including, of course, the treaty power.  Contrast this express delegation of power to the federal government with the “invisible radiations” that Justice Kagan said Bond’s supporters seem to think come from the structure of the Constitution.

Fortunately, there didn’t seem to be a tremendous amount of interest from the Court in the radical limits on federal treaty-making power that had been pushed by some of Bond’s supporters.  But many of the Justices did seem skeptical about Bond’s prosecution under the law implementing the chemical-weapons ban, appearing sympathetic to Clement’s argument that the implementing legislation should not apply to “garden variety assaults with chemicals,” such as Bond’s assault on her victims. 

Of course, Justice Ginsburg noted the “irony” that while Clement and his conservative supporters are arguing that the federal government’s prosecution of Bond under the federal chemical weapons law trenches on state authority, the woman Bond tried to injure in this case repeatedly went to local authorities, who refused to help her.  It was not until she turned to the federal government that she received any assistance.  So even if the federal prosecutor may have been overzealous in this case, as many have argued, the local authorities were decidedly not interested in this so-called “domestic dispute.”  [The even larger backdrop to Justice Ginsburg’s wry comment is that local authorities’ historic reluctance to get involved in violence against women when it was deemed to be a domestic—and thus private—dispute was found to be an insufficient basis for parts of the federal Violence Against Women Act, which were struck down in US v. Morrison, a case relied upon repeatedly by Clement.]

But the actual people involved in the sad soap opera of the Bond case don’t seem to matter that much.  Justice Alito made no bones about it: the world doesn’t care about Carol Bond or her victims.   He asked Clement whether “there is any other country in the world that has the slightest interest in how the United States or any of its subdivisions deals with the particular situation that's involved in this case.”  Perhaps not.

But as the Solicitor General, ever the adult in the room, said when he broke into the Justices’ (and the gallery’s) guffaws over various outlandish situations of chemical-related shenanigans that seem unrelated to international bans on chemical weapons—Lance Armstrong doping!  Justice Alito “poisoning” trick-or-treaters with chocolate! “Do horses eat potatoes?” (yes, Justice Scalia uttered those words)—“this is serious business.”

Justice Sotomayor placed the case into context by noting that the United States had recently been heavily critical of Syria’s use of chemical weapons, and expressed concern that it might undermine our national interests and foreign relations if the Court invalidated legislation implementing prohibitions on chemical weapons.  As she asked Clement, “why isn’t the intentional burning, killing of another human being using chemicals the essence of what this treaty is trying to stop?”  It’s a good question.  What I wondered from my seat in the audience was, is it only because Bond was unsuccessful in her attempts to injure her victims with toxic chemicals that so many find her case to be below the notice of the chemical weapons law?  If she had seriously injured her husband’s lover or her child, would people like George Will, who termed this “the case of the mildly injured thumb,” still think this case was a silly little local matter?  (Justice Sotomayor tried to raise this point but was talked over by Justice Alito, something I didn’t even know until I read the transcript and saw the beginning of the Justice’s question: “If her child had died—.”)  Is it because it is a so-called “domestic dispute” involving a wife, a cuckold husband, and his lover?

It seems the Court might find a way to avoid some of the deeper constitutional questions by accepting Bond’s argument that the law implementing the chemical weapons treaty does not cover her conduct.  The statute criminalizes and bans the use of chemical weapons when they are used other than for a “peaceful purpose”; Clement argued today that, in the context of the treaty, this language excludes a malicious use of chemicals that is based on a personal vendetta as opposed to a “war-like” deployment of chemical weapons (although, as the Solicitor General noted, the line between personal and war-like use of chemical weapons is not always so clear).  Clement analogized it to a situation where two scientists get in a fistfight in Antarctica; while not conduct we condone, and maybe even an assault, Clement argued that such fisticuffs would not likely be considered a violation of our pledge to reserve the continent for only peaceful purposes. 

“Peaceful” poisoning?  Perhaps it’s the cure for toxic exposure to the “invisible radiations” of the Tenth Amendment. 

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