Posted June 5, 2014, by Edmund R. Folsom.


An interesting U.S. Supreme Court opinion was issued on Monday, June 2, 2014. In Bond v. United States, 572 U.S. __ (2014), the Court was presented with questions about the limits of the federal government’s power to criminalize and prosecute.  The questions were raised by the prosecution of a Pennsylvania woman, Carol Anne Bond, under a law passed to implement an international chemical weapons convention.  The majority of the Supreme Court ducked the big issues and decided the case as a narrow matter of prosecutorial overreach, leaving the big issues for another day.

Petitioner Carole Ann Bond’s closest friend was, at one point, Myrlinda Hanes, unitil Bond discovered that Hanes was pregnant and that Bond’s husband was the guy who got her that way.  At that point, Bond– a microbiologist with a job at a chemical company– began plotting to mix and spread a chemical concoction in places where Hanes would come in contact with it and develop a skin rash.  Bond repeatedly placed the concoction on the door knob of Hanes’ house, on Hanes’ car door handle and on her mailbox.  Hanes repeatedly noticed and avoided the powdery concoction, except for one time when she got some on her thumb.  On that occasion, Hanes felt a burning sensation until she rinsed her thumb with water.  Because the concoction was placed on Hanes’ mailbox, postal inspectors were called to investigate. They mounted a camera that caught Bond in the act of stealing mail from Hanes’ mailbox and putting a chemical in the tailpipe of Hanes’ car.  With that evidence in hand, the U.S. Attorney’s Office secured an indictment against Bond, alleging 2 counts of mail theft and 2 counts of possession and use of a chemical weapon in violation of the Chemical Weapons Convention Implementation Act.  Bond was convicted and sentenced to serve 6 years in federal prison, followed by 5 years of supervised release.  That’s right, your federal government used its resources to prosecute Bond, based on that conduct, for violating a law that implemented an international chemical-weapons-ban treaty. Why?  Because they could…because the law will always be pushed to its extremes…because, inevitably, whatever can be done will be done.

Here’s how the government went about it. The Chemical Weapons Convention Implementation Act (Act) implements, domestically, the International Convention on the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction (Convention).  Tracking the design of the Convention, the Act prohibits the production, acquisition, receipt, use, etc., of any “chemical weapon.”  The Act defines the term “chemical weapon” as any “toxic chemical” used, received, etc., for a prohibited purpose.  A “toxic chemical” is defined as any chemical that is capable (whether it does so or not) of causing death, temporary incapacity or permanent harm to humans or animals, and the only non-prohibited purpose under the Act is a “peaceful purpose.”  Because the chemical concoction used by Bond is capable of causing death, temporary incapacity or permanent harm to a human or animal (if enough of it is used in a particular way), and because Bond did not use it for a peaceful purpose, she was, by the statute’s plain terms, guilty of violating the Chemical Weapons Convention Implementation Act.

In her appeal, Bond argued that the chemical weapons statute under which she was prosecuted violates the Tenth Amendment to the U.S. Constitution, because its enactment exceeds the enumerated powers of Congress and intrudes upon powers reserved to the states.  Bond also argued that the chemical weapons statute, by its own terms, when properly construed in context, does not apply to the conduct at issue.  The Court’s opinion, written by Chief Justice Roberts, avoided deciding the first argument and bought the second, holding that Bond’s prosecution was beyond the Act’s reach.  Bond’s crime was the type traditionally prosecuted by state authorities under statutes prohibiting assault, reckless endangerment, etc.  The Court stated that, in such matters, it will not construe a federal statute to override the traditional balance of federal versus state power unless Congress has manifested an unambiguous intent for the law to so intrude.  The Court found that Congress had not unambiguously expressed that intent with regard to the chemical weapons statute.  They traced the origins of the international Convention and the Act itself and found that the Act’s use of the term “chemical weapons” showed Congress’s intent to ban chemicals that were used, stockpiled, manufactured, etc., as instruments of chemical warfare, for offensive or defensive combat. Bond’s use of her chemical mixture against Hanes had nothing to do with chemical warfare or combat, so the Act did not apply.  The Court pointed out that if the Act is construed to reach Bond’s conduct, it would also reach the poisoning of a goldfish by placing a few drops of vinegar in its fishbowl.  It simply made no sense that Congress intended a statute designed to address the use of chemical weapons during warfare to apply to such conduct.

Three concurring Justices expressed deeper concerns about the power of the President and Senate to enter into treaties that reach into matters of domestic versus international concern, and the power of Congress to enact legislation implementing treaties as a matter of domestic law.  Justice Scalia called-out the majority opinion for claiming to find ambiguity in the entirely clear definition of “chemical weapon” contained within the Act.  To Scalia, the majority opinion tortured the law on construction of statutory ambiguity, to allow the Court to reach the desired result without deciding the real issue.  The real issue is whether Congress has the power to pass a law domestically implementing an international treaty to begin with. Scalia would have held that Congress has no such power, because the necessary and proper clause, in Art. I, §8, of the U.S. Constitution does not confer it.  In his view, the necessary and proper clause allows Congress to make laws necessary to assist the President in making treaties but not the power to enact laws to implement a treaty as a matter of domestic law after the treaty has been made.  Scalia sees danger in allowing Congress to enact such implementing legislation, in the sense of a great potential to allow the federal government, through this mechanism, to ride roughshod over powers reserved to the states under the Constitution.

Justice Thomas wrote a separate concurring opinion to emphasize that the President’s treaty power is limited to treaties that address international concerns, as opposed to matters of a strictly domestic concern.  In other words, even if an unambiguous intent had been expressed to enter into a treaty that would criminalize any poisoning of any person or animal on the planet, and even if Congress had shown an unambiguous intent for its implementing legislation to criminalize the same behavior in the United States of America, the treaty and implementing legislation would be unconstitutional, because they would exceed the treaty power conferred by the U.S. Constitution.

Justice Alito’s take was also that the treaty power is limited to matters of international concern.  In his view, if the Convention on the Development, Production, Stockpiling, and Use of Chemical Weapons and on their Destruction is directed at control of “true chemical weapons” it does not exceed the treaty power of the President and Senate, but if the Convention and the Act were intended to criminalize Bond’s behavior they exceed the treaty power.

The Bond case is interesting in its demonstration of the various ways the federal government strains to exercise unbridled power over all.  Immediately, the case involves federal prosecutorial overreach into a matter of traditional state concern, by abuse of a statute banning the use of “chemical weapons” to prosecute a woman who tried to give another woman a chemically-induced skin rash. More broadly, the case is an illustration of the federal government’s perpetual push to intrude on powers reserved to the states by any and all available means– the extraordinarily overused commerce clause, the treaty power, the necessary and proper clause– you name it. Always, those who lust for power and control seek to concentrate it in themselves.  The only thing that possibly stands in the way in this country is the U.S. Constitution- a document now often derided as ancient and irrelevant. But how many years of human experience were taken into consideration by its makers, versus the relatively few years that have passed since its making?  Throughout it all, the lust for power and control burns eternal, and the beast forever seeks to break free of its restraints.