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Bond v. U.S.: Supreme Court Hears Thumb-Sized Federal Case

The government embarrasses itself by bringing a chemical weapons charge for a burned thumb.

by
Hans A. von Spakovsky and Andrew Kloster

Bio

November 8, 2013 - 8:00 am
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Bond, represented by experienced Supreme Court litigator and former Solicitor General Paul D. Clement, argued that the treaty power does not expand the limited and enumerated powers of Congress established under the Constitution. This same argument was made in a prior Supreme Court case, Medellin v. Texas, by Republican Sen. Ted Cruz when he was solicitor general of Texas.

This principle did not sit well with Justice Sonia Sotomayor, who aggressively defended the government’s position in favor of an expansive reading of federal authority. She claimed it would be “deeply ironic” if the Supreme Court invalidated the Chemical Weapons Convention Implementation Act just as we are trying to deal with Syria. But Bond is not challenging the validity of the treaty itself; she is challenging the authority of Congress to pass a federal law that usurps the traditional police power of the states. It is difficult to imagine that a refusal to uphold the prosecution of a woman in a domestic dispute could have any effect on the international dispute with Syria over weapons of mass destruction, a point made by Paul Clement.

The justices repeatedly questioned Solicitor General Verrilli about whether there are any constitutional limits on the power of Congress to enter treaties or implement them. Chief Justice Roberts specifically asked whether Congress could ratify a treaty that gave the federal government national police powers and then pass an implementing statute giving the federal government “the authority to prosecute purely local crimes.” Verrilli attempted to dodge the question by answering that it “seems unimaginable” that the Senate would ratify such a treaty, to which Justice Anthony Kennedy responded that it also “seems unimaginable that you would bring this prosecution.” The courtroom broke into laughter.

Ultimately, Verrilli’s answers on what limits there are on the government’s power under a treaty were confusing and contradictory. He specifically referred to the Senate’s ratification as “an important protection,” but then avoided giving an answer as to what the “outer bound” would be. Verrilli made it appear that the government does not really believe there is any limit.

In a bad sign for the government’s case, Justice Stephen Breyer repeatedly challenged Verrilli. The justice seemed genuinely irritated not only at his refusal to draw a line that defines how far the government’s power could extend under the Treaty Clause of the Constitution, but at his contention that the judiciary should have no role in construing the scope of domestic authority a particular treaty gives the federal government.

Breyer also appeared irked when Verrilli claimed that national security and foreign policy issues militated against the Supreme Court interfering in this area. The justice said that was the first he had heard of such a concern adding that he wondered why, if this was such a serious issue, the State Department had not filed a brief.

Breyer gave examples of prior cases that could have been prosecuted under the chemical weapons convention to illustrate how open-ended the treaty is given the government’s position. One featured a racehorse that was killed by a poisoned potato. All of Breyer’s examples involved chemicals even though they have “absolutely nothing to do with chemical weapons.” When Verrilli said those were just hypotheticals, not real cases, Breyer responded that these were real cases. Verrilli tried to fight back, saying that giving “vinegar to a goldfish” is not a real case. At that point, Justice Samuel Alito interjected that they were “not real cases because you haven’t prosecuted them yet.” The courtroom broke into laughter again.

The “vinegar to a goldfish” example was something that Justice Alito had raised in the oral argument during the Court’s first hearing of the Bond case. Under the government’s interpretation, Alito had said, it could prosecute an individual for using vinegar to kill a goldfish since the Chemical Weapons Convention bans the use of toxic chemicals to kill animals, too. On Tuesday, Alito was at it again, telling Verrilli:

A few days ago my wife and I distributed toxic chemicals to a great number of children. On Halloween we gave them chocolate bars. Chocolate is poison to dogs, so it’s a toxic chemical under the chemical weapons treaty.

Justice Breyer added that there was “chocolate all over the place,” and Justice Antonin Scalia commented that he “didn’t know horses ate potatoes,” leading to more laughter in the courtroom. When Verrilli, who seemed disconcerted by these comments, responded that “this was serious business,” Justice Alito pointed out:

If you told ordinary people that you are going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted. It’s so far outside of the ordinary meaning of the word.

Justice Breyer was obviously concerned about the government’s definition of a chemical weapon:

We can tell joke after joke, but it’s not a joke that it’s so easy to make up examples that seem to have nothing to do with the problem of chemical weapons like the Syrian problem.

Breyer aptly summarized the concerns seemingly shared by many of the justices when he stated:

In principle [the government’s] position constitutionally would allow the President and the Senate, not the House, to do anything through a treaty that is not specifically within the prohibitions of the rights protections of the Constitution. … And I doubt that in that document the Framers intended to allow the President and the Senate to do anything. … Now if you carry it to an extreme, that’s what you are, that’s where you are, and I’m worried about that and I think others are, too.

A constitutional system of limited government cannot have a “loophole” through which the federal government can get unlimited authority. The treaty power of Article II is no such loophole.

 

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Hans von Spakovsky is a Senior Legal Fellow and Andrew Kloster is a Legal Fellow in the Edwin Meese III Legal Center at the Heritage Foundation.

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Top Rated Comments   
It's absolutely happening. The people pushing for unlimited government and maintaining citizen ignorance on the subject will just turn around and call you a crackpot for saying so too.

You can't call a duck a duck anymore because it didn't quack...98% of certified government scientists agree that it doesn't sound like a quack and your argument is invalid because it lacks the proper certification. Now get back in your corner you relgious racist while they try to heal the planet and stop the rise of the oceans. (Because that doesn't sound religious at all!)

Interesting days we live in.
1 year ago
1 year ago Link To Comment
"A constitutional system of limited government cannot have a “loophole” through which the federal government can get unlimited authority. The treaty power of Article II is no such loophole."

I agree, but please note, all around, day on day, week on week, month on month, we are fast becoming a system of unlimited government. A change of a justice or two and we would be there and this case could easily be a 'loophole' indeed.
1 year ago
1 year ago Link To Comment
As I get older I find myself in agreement with Nietzsche who believed that in a Post-Modern age the only natural drive left in humans as the Will to Power (the other drive, which modernity tamed, he believed, was our religious instinct). Now, the Founders pre-dated Nietzsche be a century or more. More to the point, how can a society defend itself against an almost constant attack by people who are consumed by the Will to Power?

Progressives have the patience of Job. They are relentless; if they cannot obtain their goals, they train future generations of Progressives to carry-out their relentless drive for Power. Fighting Progressives requires an equally relentless drive and willingness to take the fight to them. However, most people just want to live their lives; they do not have the commensurate Will to Power that the Progressives possess.

Our Republic resembles the fictional kingdom of Westerlos from the Game of Thrones. The Kings built a magnificent wall along their northern frontiers to keep the Evil out. Originally, the Wall was manned by the best - an elite force of men totally dedicated to the defense of the realm. But, over centuries the force devolved into a ramshackle force of the elderly, the criminal and the insane. The Kingdom, after 1000 years, no longer believed Evil even existed to the North. Our Constitution is the Wall. It is under constant attack, and its defenders are aging Constitutionalists whose faint memories of a time past, better times, they will take to their graves.
1 year ago
1 year ago Link To Comment
All Comments   (33)
All Comments   (33)
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The government must argue this, or what will they do with the small arms treaty?
1 year ago
1 year ago Link To Comment
This case is about getting a precedent in the Supreme Court so that, in the future, if they can pull off a UN firearms treaty, they can do an end-around the 2nd Amendment.

Anyone remember how Obama kept talking about "international norms"? That's a clue.
1 year ago
1 year ago Link To Comment
This is absolutely about the Arms Treaty. If they can get a precedent under this ruling, then they think they have an opening for gun control under that treaty whether it's ratified or not, Kerry and the President both have signed it.
1 year ago
1 year ago Link To Comment
Commented before I read any others so it's interesting that we've come to the exact same conclusion!
1 year ago
1 year ago Link To Comment
I often wonder if the Prog scum only have Ostupid in the white house to get Eric Holder at Justice, so he could continue destroying the rule of law in this country.
Why else does he run these red herrings by us so often, with no apparent reason for them?
There is always a reason, but noone wants to admit that the only way to stop Holder is to hang him.
Period.
He is pressing this so he can use UN BS to take guns away, to tax people illegally, to destroy this country and especially the Constitution, with its inconvenient bill of rights. Thanks to Obumbles, we now have two entirely unqualified, nearly retarded female political hacks who sit as Supreme Court justices. They will decide whatever they are told to decide.
The more bizarre cases seem to have no meaning, but that is a ruse. They are laying the legal groundwork to take apart the last few shreds of the Constitution that remain, but it must be done in obscure, trivial cases, lest they catch the public eye.
The major defect in the American Justice system is its devotion to precedent, no matter how stupid or diabolical. Once the Supreme Court has taken a right away, it is gone. The Civil War was fought to overturn one really stupid decision. They should have just shot the Justices.
That we let twelve unelected officials decide our most important decisions makes us no better than Henry VIII England, where no man's head was safe. We are a Republic no more, not even a democracy, really. We are only allowed to choose from the menu given us by our betters.
Luckily, those "betters" still bleed. It may well come to that.
1 year ago
1 year ago Link To Comment
and even if Bond wins, the government spent him into bankruptcy using his own tax dollars, unless the court orders damages for him, which i seriously doubt will happen.
1 year ago
1 year ago Link To Comment
I think we all know exactly what Amendment they would euthanize if this conviction is upheld by the Supreme Court.
1 year ago
1 year ago Link To Comment
There is a movement afoot at the UN to outlaw blasphemy (because Muslims are so sensitive.) Imagine that it passes and the US signs on to it. We would have essentially gutted the First Amendment if this case is upheld. And as President Petulance views the Constitution as "a charter of negative rights" I think he would sign it.
1 year ago
1 year ago Link To Comment
It is a constitution of negative rights, the freedom from government interference, for example in your free speech. The progressive constitution is one of positive rights, rights other have to your property, if you have more than average.
1 year ago
1 year ago Link To Comment
If a statement is true is it blasphemy?
1 year ago
1 year ago Link To Comment
Blasphemy is truly in the eye of the beholder.
You ask me the time of day.
I am offended.
You go to jail.
See? Simple.
1 year ago
1 year ago Link To Comment
Yes. If it turns out to be true, they'll dig you up and execute you again.
1 year ago
1 year ago Link To Comment
Only if you're Cromwell.
You're not, are you?
You had me worried for a minute. We could really use a Cromwell about now, but I hate bloodshed.
Can't you wait until I die?
1 year ago
1 year ago Link To Comment
"This principle did not sit well with Justice Sonia Sotomayor, who aggressively defended the government’s position in favor of an expansive reading of federal authority. She claimed it would be “deeply ironic” if the Supreme Court invalidated the Chemical Weapons Convention Implementation Act just as we are trying to deal with Syria. But Bond is not challenging the validity of the treaty itself; she is challenging the authority of Congress to pass a federal law that usurps the traditional police power of the states. "


Here's the difficulty of appointing affirmative action Marxists to the federal courts: When they demonstrate their inability to apply even the most basic common sense to a question, we can never know whether it is due to their devotion to Marxist ideology, which causes them to utterly disregard truth, or to simple stupidity.


Either explanation suits Sotomayor.
1 year ago
1 year ago Link To Comment
Is it her ideological belief in the supreme power of government prohibits her from understanding that the Constitution provides limits on government power OR is it her blind faith in the wisdom of Obama that leads her to side with the government on everything? If the latter, I hope she realizes that, absent a third term, someone else will be President in 2017?
1 year ago
1 year ago Link To Comment
She's an idiot. She does as she's told.
There is no "there", there.
Dumb as a rock.
1 year ago
1 year ago Link To Comment
The worst of it is that she's young and likely be like Ginsberg and live to be umpteen bajillion years old.
1 year ago
1 year ago Link To Comment
They say you can find good and bad reasons for almost anything, which is why, when you attack someone else's actions, it's so easy to attack their motives as well. You might not know their motives, so you make them up, and make them sound as bad as possible. (Children know all about this. "You're making me go to bed at bedtime because you just don't love me!")

Similarly, it is important not just to do the right thing, but for the right reasons. Sending your child to bed at bedtime so that she will get a good night's sleep is a good reason. Sending her to bed so that she won't interfere while you cook crystal meth is a bad reason.

It sounds as though, in her effort to get revenge, Ms. Bond attacked people with chemicals. Perhaps she does indeed deserve punishment for her form of vigilante justice. But she should be punished for the right reasons. She was trying to get even, not to concoct chemical weapons to sell to Syria.

If the government's main argument is that she deserves to be imprisoned because of her use of chemical weapons, then she should go free.
1 year ago
1 year ago Link To Comment
Verrilli was also laughed at when given the task of arguing the PPACA. Can poisoning someone be deemed a tax?

As an aside, it seems the Pacepa column can no longer be responded to.
1 year ago
1 year ago Link To Comment
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