The Supreme Court has issued its ruling in one of the cases that I have been following closely. The Court ruled unanimously in Bond v. United States that Bond had standing to challenge the statute carrying out the Chemical Weapons Convention as violating the inherent powers of in this instance intruded on areas of police power reserved to the states. While it is not the type of case that pulls media coverage, it is very important and clearly the right result. We debated Bond in our Supreme Court class and came to the same result. On the merits, nine of us voted to reverse the United States Court of Appeals for the Third Circuit and four voted to affirm the lower court. On the prediction of what the “other” court would do, eight of us predicted a reversal and five predicted an affirmance. It proved not to be a close question in rejecting the arguments of the Obama Administration seeking to bar citizens from being able to challenge such statutes. It is a victory for standing and more importantly for individual rights.
I have been speaking about Bond around the country as part of a discussion of the expanding powers of agencies and the erosion of both state and individual rights. The facts are rather bizarre. The case began as an all-to-familiar matter of marital infidelity. Carol Anne Bond was a microbiologist from Lansdale, Pennsylvania when she learned that her best friend, Myrlinda Haynes, was pregnant. The problem is that the father is Bond’s husband. Bond decided to get revenge and took some fairly common chemicals from her company that had an arsenic-based compound). She also ordered a vial of potassium dichromate commonly used in printing photographs or cleaning laboratory equipment on Amazon.com. The chemicals were very noticeable (one I believe was orange in color) and it did not fool Haynes when she painted Haynes’ door knob, mailbox, and car door with the chemicals on repeated occasions. Haynes avoided contact and called the police. To my surprise, the police refused to get involved. She then had the idea of going to the post office, which has a huge investigative and law enforcement arm. They launched a huge crime net — putting cameras around the mailbox to capture images of Bond. It worked. The Justice Department then proceeded to charge her under the Chemical Weapons Convention — putting her in the same category as Saddam Hussein. They charged her with two counts of mail theft, in violation of 18 U. S. C. §1708 and two counts of possessing and using a chemical weapon.
It was a clear case of overcharging but the Obama Administration refused to back down. More worrisome was the argument of the Administration that even when a citizen is being charged under a federal law based on such a convention, she cannot actually challenge the underlying law. It is a consistent with the Obama Administration’s long and troubling history of creating barriers to citizens in challenging governmental action. It was also a direct attack on state authority. The Obama Administration was arguing that it (and the Senate) could agree to an international treaty that contained provisions that would arguably be barred under federalism principles.
The Convention was written broadly because the intent was to cover an array of weapons of mass destruction. It was ratified in 1997 to allow for the “general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction.” Convention Preamble, ibid. Bond hardly comes to mind. The Convention was intended as advancing the the Geneva Protocol’s protections and to expand the prohibition on chemical weapons beyond state actors in wartime. Convention Preamble, 1974 U. N. T. S. 318 (the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, . . . thereby complementing the obligations assumed under the Geneva Protocol of 1925”). For that reason, “chemical weapons” are defined broadly as “[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes.” Art. II(1)(a), ibid. A “Toxic Chemical” is defined as “Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere.” Art. II(2), id., at 320. That could include some common chemicals found in department stores and households.
Associate Justice Anthony Kennedy rejected the absolutist interpretation advanced by the Justice Department and said that the background for such laws must be considered in the interpretation of the law as well as countervailing assumptions: “Among the background principles of construction that our cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution. It has long been settled, for example, that we presume federal statutes do not abrogate state sovereign immunity, Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985), impose obligations on the States pursuant to section 5 of the Fourteenth Amendment, Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 16–17 (1981), or preempt state law, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947).”
The Court concludes with a presumption in favor of state rights that offers a refreshing limitation on federal authority in such international agreements:
The Convention provides for implementation by each ratifying nation “in accordance with its constitutional processes.” Art. VII(1), 1974 U. N. T. S. 331. As James Madison explained, the constitutional process in our“compound republic” keeps power “divided between two distinct governments.” The Federalist No. 51, p. 323 (C.Rossiter ed. 1961). If section 229 reached Bond’s conduct, it would mark a dramatic departure from that constitutional structure and a serious reallocation of criminal law enforcement authority between the Federal Government and the States. Absent a clear statement of that purpose,we will not presume Congress to have authorized such a stark intrusion into traditional state authority.
Here is the opinion.