FantasySCOTUS: A new limitation on treaty-making powers to emerge from the actions of a scorned wife?

November 7, 2013

SCOTUS ClipboardIt’s not often that a domestic dispute invokes questions of national security.  And it’s even less often that such a dispute makes its way before the Supreme Court.

But the nation’s high court has such a case before it in Bond v. United States, for which the Court heard oral arguments this past Tuesday.

Bond started after Carol Bond discovered that her closest friend, Myrlinda Haynes, was pregnant.  As the Court of Appeals stated, “Bond’s excitement turned to rage when she learned that her husband…was the child’s father. She vowed revenge.”

Bond is a trained microbiologist who worked at a chemical company, so, using chemicals that she both stole from her employer and ordered over the Internet, Bond attempted to poison Haynes with the chemicals at least 24 times over the course of several months.  Bond did this by spreading the chemicals on Haynes’s home doorknob, car door handles, and mailbox.

Haynes had been noticing the chemicals, and did her best to avoid them, but she sustained a chemical burn on her thumb on at least one occasion.

Haynes attempted to contact local law enforcement, who suggested that she “clean her car and door handles on a regular basis.”  Unsatisfied with this response, Haynes complained about the chemicals on her mailbox to her local postal carriers, who then referred the matter to the U.S. Postal Inspection Service.

The postal inspectors placed surveillance cameras in and around Haynes’s home, and captured Bond opening Haynes’s mailbox, stealing a business envelope, and placing chemicals in Haynes’s car.

After further testing and investigation, the inspectors concluded that Bond had stolen chemicals from her employer and was responsible for using the chemicals to injure Haynes.

Bond was charged with possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), a criminal statute implementing the treaty obligations of the U.S. under the 1993 Chemical Weapons Convention.  Bond eventually pled guilty to all charges, reserving her right to appeal.

The case actually made it to the Supreme Court once before in 2011, and the issue was purely one of standing.

Now, it’s back, and the issue is whether the statute under which Bond was charged and convicted is unconstitutional as violating the Tenth Amendment by infringing on the police powers of individual states.

The specific argument that Bond is making is that the 1993 treaty itself is constitutional, but the implementing legislation passed by Congress thereafter is not.

Here’s what’s at stake, in other words: Bond is asking the Supreme Court to strike down the implementing legislation because it is unconstitutional.  Those international law buffs among you may be quick to point out that 1920’s Missouri v. Holland Supreme Court ruling makes it clear that treaties are the supreme law of the land (along with the Constitution), and that it’s perfectly constitutional that any state rights are impinged by a treaty.

Bond is apparently attempting to get around Holland by differentiating between the treaty itself and the legislation implementing it (basically arguing that Congress went way too far in its implementing legislation).

Whether there is an actual difference between the two – in addition to whether the judiciary has any authority to question the executive’s treaty-making powers – is up for debate (although most international law scholars seem to answer in the negative to both), what the Supreme Court rules on the matter will be the law going forward.

So how does the Supreme Court look to rule on Bond?

Though I have a hard time believing that the Court could make such a massive jurisprudential shift as modifying the landmark Holland holding, “states’ rights” fever seems to have taken grip of many of the justices currently sitting on the bench.  As such, Bond appears poised to win.

Almost assuredly in the government’s camp are Justices Ginsburg, Sotomayor, and Kagan.  At oral argument, they unleashed a relentless assault of questions on Paul Clement (Bond’s attorney).

The other six justices, though, did largely the same during Solicitor General Donald Verrilli’s argument for the U.S. government.  This was especially shocking to witness for anyone familiar with international law, since the Constitution contains no limits on the treaty-making powers bestowed therein – and no court has ever interpreted the document as containing the like.

Will it be a 6-3 decision?  It’s hard to say for sure, largely because Justice Breyer seemed to be searching for some kind of middle ground (likely because he may be aware that the five conservatives are not going to side 100% with the government in this case).

Considering the magnitude of the constitutional questions present here, I wouldn’t be surprised if a plurality opinion emerged that made a narrow rule about implementing treaties that only seemingly applies to cases closely resembling Bond’s.  Then again, the current Court doesn’t seem to care much for precedent (see last term’s Shelby County v. Holder), so it’s entirely possible that the Court could make a sweeping ruling turning Holland – and the entire body of international law – on its head.

Either way, I can’t see the Court affirming the appeals court’s decision upholding Bond’s conviction – and, by extension, the constitutionality of the treaty’s implementing legislation.

Bond v. U.S.

Question Presented

Whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland.

Lower Court’s Decision

Not Addressed.

My Prediction

REVERSE 6-3 (Majority: Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito; Dissent: Ginsburg, Sotomayor, Kagan).

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