What do migratory birds, Halloween chocolate, chemical weapons, and love triangles have in common? Until recently, absolutely nothing. However, the strange case of Bond v. United States unites these seemingly random objects in a scenario that threatens to undermine American federalism and, consequently, our basic rights and liberties.
By any standards, the saga of Carol Bond is downright absurd. After her husband impregnated another woman, Bond vowed revenge on the mistress. The Pennsylvania woman was arrested for planting toxic chemicals in the pregnant woman’s mailbox and car muffler. In its infinite wisdom, the Department of Justice decided it would be constitutionally and legally appropriate to indict Bond on federal charges, transforming what would have been a simple local crime of passion into a national affair. Common sense suggests Bond should have been charged with tampering with the mail and assault. Instead, she was charged with federal crimes under the 1998 Chemical Weapons Convention Implementation Act, an act designed to enforce an arms-control treaty signed by the United States in 1993. Two years ago, the Supreme Court unanimously ruled Bond had standing to challenge the constitutionality of her conviction. Her case is once again before the Court. Prosecuting an angry lover under a chemical weapons treaty is downright ridiculous. However, this case is notable not for its absurdity, but for the extreme danger it poses to civil liberties and state sovereignty.
Bond’s indictment on federal charges poses a grave threat to states’ right to exercise control over internal matters of justice. Even the most fervent states’ rights activists will concede Congress can and should exercise the power to sign treaties designed to limit military use of chemical weapons. However, treaties by their very nature apply to nations, not individuals. The Chemical Weapons Convention highlights this point in its opening words:
“The States [emphasis added] Parties to this Convention, Determined to act with a view to achieving effective progress towards general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction […]”
The treaty clearly focuses on the admirable goal of establishing an international regulatory framework in order to secure and destroy chemical weapons of mass destruction. It is designed to prevent rogue states and terrorist cells from releasing chemical agents on unsuspecting civilian populations. However, Bond is neither a rogue state nor a terrorist. Her use of poison has nothing to do with national concerns, much less international arms treaties.
However, Bond’s use of “chemical weapons” is outlawed under the treaty due to its use of extraordinarily broad definitions. The treaty requires the United States to “destroy chemical weapons […] that are located in any place under its jurisdiction or control.” A chemical weapon is defined as a toxic chemical, “which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.” Although the treaty does make exceptions for nonviolent uses of “toxic chemicals,” such as industry and scientific research, it unfortunately extends its authority to a myriad mundane and ordinary criminal acts. In oral arguments, Justice Breyer noted that the use of kerosene in arson might now be considered attempted chemical weapons use. He also referred to a case in which a man attempted to poison a horse with a potato. Similarly, Justice Alito confessed that he and his wife violated the treaty and “distributed toxic chemicals to a great number of children” on Halloween. Chocolate, of course, is poisonous to dogs; Alito implied he could have been prosecuted if a dog had eaten his chocolate. The sheer ludicrousness of the treaty’s definition of “toxic chemical” made oral arguments a farce. Justice Scalia whimsically pondered if horses actually eat potatoes, and Justice Alito evoked laughter from the crowd by informing a flustered Solicitor General Verrilli that the aforementioned examples are not real cases only because the Department of Justice had not yet prosecuted them.
Although this case is, in many ways, a laughingstock, pausing to consider its constitutional implications yields bone-chilling hypothetical scenarios should Bond lose the case. At the core of American federalism lie the concepts of delegated and police powers. Congress may only exercise the powers explicitly listed in the Constitution. These delegated powers, reinforced by the Tenth Amendment, most notably contain the Enumerated Powers of Article I as well as those created in amendments. State governments, by contrast, are permitted to exercise any power not explicitly prohibited by the Constitution. As governments of general jurisdiction, the states wield police powers, the ability to regulate society’s health, morality, economy, and general welfare. The separation of powers largely rests upon one key principle: the federal government cannot exercise police powers. If Congress possessed such powers, state governments would be rendered useless and obsolete, as state issues such as education, business licensing, and public morality (e.g. alcohol and obscenity laws) would fall into the federal regulatory framework. Indeed, much of the lamentable decline of state power and the corresponding rise of big national government is due to the latter’s attempt to exercise police powers.
Two other constitutional provisions are at the heart of this case: the Treaty Making Power and the Supremacy Clause. The former allows the Senate to ratify treaties, and the latter states, “all Treaties made […] shall be the supreme Law of the Land.” In the 1829 case Foster v. Neilson, Chief Justice Marshall articulated the Supremacy Clause’s meaning:
“Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature [emphasis added].”
It does not take much insight to notice that, as is the case with many constitutional provisions, an apparent contradiction is present. Congress may only exercise enumerated powers. Treaties are the supreme law of the land and must be regarded “as equivalent to an act of the legislature.” Therefore, under the federal government’s logic, any treaty has the force of congressionally created law. However, Congress may only exercise enumerated powers. So what happens when a treaty requires Congress to exercise a non-enumerated police power such as the prosecuting a woman for poisoning her husband’s lover?
Bond argues that because the power to prosecute individuals for violating a treaty is not an enumerated power, Congress may not exercise it. As Bond’s lawyer and former US solicitor general Paul Clement claimed in oral arguments, “It is a bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct without regard to a jurisdictional element or some nexus to a matter of distinctly Federal concern.” This concern is clearly nonexistent in the Bond saga; Bond’s actions, while condemnable and undeniably illegal, are matters of local concerns.
One might wonder why any of this matters. Bond clearly broke the law and attempted to injure or kill another woman. Who cares if she wastes away in federal prison or the county jail? Let us assume, for the sake of argument, that Bond loses the case; the federal government has the constitutional authority to exercise general police powers to implement treaties. It is plausible, then, that Congress could use its treaty-making power in order to create new police powers for itself. In other words, if Bond loses this case, Congress could ratify bogus treaties in order to expand its own powers without restriction; the only limitation on this theoretical expansion is the relatively unheard-of 1957 case Reid v. Covert, in which the Court invalidated the application of a treaty that directly violated Fifth and Sixth Amendment rights. While Congress may not invalidate the Bill of Rights or other explicit limitations on its power (such as its inability to grant titles of nobility), it could use treaties to interfere with the rights otherwise left to states and citizens. Theoretically, Congress could use this treaty-driven authority to require a state’s education, healthcare, welfare, taxation, and economic policies to adhere to international standards. More terrifyingly, Congress could feasibly cede sovereignty over certain policy issues to the United Nations or other supranational institutions. Consider, for example, the controversial Arms Trade Treaty, signed by Secretary Kerry but fortunately not yet ratified by the Senate.
Congress could also use treaties to circumvent the Commerce Clause. Suppose Congress attempted to regulate the hunting of migratory birds under the logic that such birds cross state lines. Angry states could likely challenge the law successfully as an expansive breach of the Commerce Clause. Congress, therefore, could circumvent this limitation on its power by signing a treaty with Canada in order to protect migratory birds. Granted, this example is ridiculous. Even more ridiculous, however, is that fact that it actually happened. In 1920, the Court upheld the Migratory Bird Treaty of 1918, ruling that the Supremacy Clause trumps a state’s Tenth Amendment concerns in Missouri v. Holland. Needless to say, if the Court is willing to let Congress use a treaty to create the power to regulate bird hunting, it would not be unreasonable to extend this logic to far less mundane intrastate issues, such as modifications of criminal and civil codes, should Bond lose her case.
Needless to say, a ruling in favor of the United States threatens to undermine our system of federalism via an erosion of the Commerce Clause and other key checks on national authority. As discussed above, such a usurpation of authority could have disastrous ramifications for state sovereignty. Consequently, it could threaten our civil liberties and personal freedom as well. As conservative ideologue Barry Goldwater once wrote, “individual liberty depends on decentralized government.” Fortunately, the Court did not seem sympathetic to Verrilli’s arguments; Justices Breyer, Kennedy, Scalia, and Alito vigorously attacked federal claims, and it would be hard to envision Justice Thomas ruling against Bond. State sovereignty is one of the last vestiges of a formerly powerful system of checks and balances that prevented the national government from blatant civil liberties violations. For the sake of our civil liberties, we should therefore hope the Supreme Court rules in favor of Carol Bond.