The U.S. Supreme Court rang with laughter at times on Tuesday as the justices heard arguments in Bond v. U.S. Unfortunately for the government, most of that laughter came at its expense.
Despite the moments of levity, the case will settle a very serious question: whether the Treaty Power can be used to expand the powers of Congress. Put another way, the case cuts to whether or not our constitutional government is one of limited, enumerated powers.
It’s bizarre that federal prosecutors ever brought this case to trial, much less took it all the way to the Supreme Court. They actually made a federal case out of a burned thumb. But what began with a lovers’ triangle became legally translated into a serious question about the international Chemical Weapons Convention, the same treaty the United States and other nations are citing in our actions against Syria.
On Tuesday, Solicitor General Donald B. Verrilli, Jr., who was not responsible for making the original decision to prosecute the case, was in the awkward position of having to defend that decision, which was derided by some of the justices on more than one occasion.
In 2006, Carol Anne Bond discovered that her husband had impregnated her best friend. Seeking revenge, Bond applied two different chemicals to the doorknob, mailbox, and car door of the now-former friend. One chemical was stolen from her employer; the other, normally used to print photographs, was ordered legally from Amazon.com.
The intended victim apparently detected the caustic chemical trap early on. Her only injury was a minor burn on her thumb. The local district attorney in Lansdale, PA, could easily have prosecuted the case as a state-law assault.
However, the federal government chose to step in.
The government charged Bond with violating the Chemical Weapons Convention Implementation Act. The 1998 Act implemented an international treaty intended to eliminate the production and use of chemical weapons by nation-states. Importantly, the treaty contains no language targeting individuals who make or use chemical weapons. As Bond’s lawyers wryly remarked in their petition:
A domestic dispute culminating in a thumb burn is not an obvious candidate for a federal prosecution.
Tuesday marked the second time that this case has come before the Supreme Court. After Bond was convicted, she challenged the 1998 law implementing the treaty as beyond Congress’ enumerated powers. The Third Circuit Court of Appeals upheld her conviction, holding that individual citizens had no standing to challenge violations of the Tenth Amendment.
But two years ago, the Supreme Court overturned the Third Circuit, ruling unanimously that Bond could challenge the law.
Justice Anthony Kennedy, writing for the majority, wrote:
Federalism secures the freedom of the individual … the individual liberty secured by federalism is not simply derivative of the rights of the States.
It would have been an odd position indeed to hold that a defendant could not challenge the law under which she was being prosecuted.
With that, the Supreme Court returned the case to the Third Circuit to reconsider Bond’s challenge. Once again, the appellate court upheld her conviction, relying on an almost century-old decision by Justice Oliver Wendell Holmes in the case of Missouri v. Holland, and claiming that as long as the treaty is valid, any implementing law must be valid, too. Bond, however, argues that the implementing law was invalid because it was otherwise beyond the scope of federal authority.
The government’s position in this case is frightening. In essence, Verrilli argues that once a treaty is signed by the president and ratified by the Senate, Congress has the power to pass any law necessary and proper to implement the treaty.