By Mark Esposito, Weekend Guy

Carol Anne Bond was overjoyed to learn that her best friend, Myrlinda Haynes, had become pregnant. That joy was short-lived when she learned that the father was none other than her husband,Clifford Bond. The Philadelphia woman embarked on a course of revenge that would result in federal charges for deploying chemical weapons and a trip to the United States Supreme Court. Passed in 1998,  the Chemical Weapons Convention Implementation Act, enabled Congress to enforce the terms of an  international treaty banning deployment of some chemical weapons. Taking advantage of that law, federal prosecutors charged Bond with obtaining two chemicals which together or separately could have killed her pregnant rival.

As a microbiologist, Bond was aware that a deadly cocktail could be formulated using arsenic-based 10-chloro-10H-phenoxarsine and/or potassium dichromate. She stole the former from her job and interneted the latter. Using the chemicals, one of which is a noticeable bright orange powder, she liberally applied the poison (24 separate times) onto Ms. Haynes doorknob, mailbox, and car door handles. While Bond had the chemical skills of Curie, she also (and thankfully) had the crime skills of Clouseau and her deceptive machinations resulted in little more than a thumb burn for her husband’s mistress.

Incensed by the burn, Haynes enlisted postal inspectors who secretly filmed Bond applying the chemicals yet again to her mail box and curiously to Haynes’ car exhaust. (Please refrain from blowing smoke up the tailpipe jokes). Getting one group of feds involved always involves getting  them all involved so federal prosecutors scrupulously scoured everything from the US criminal code to international treaties to charge Bond with something more than what is was — simple assault. We’ve  talked about the problems of federal overcharging lots of times on our blog.

The result of this creative charging? Well, the Pennsylvania woman spurned by her husband and moved to revenge just became akin to an international (she was born in Barbados) terrorist. Charged under the federal statute, Bond pleaded guilty conditionally (she wanted to appeal the case) and received a long prison sentence (6 years) in the federal hoosgow when state charges would have gotten her a short stay or even probation.

Bond appealed and the case worked its meandering way to the SCOTUS on the issue of whether or not Congress could enforce its treaty obligations by criminalizing conduct that is traditionally and, in my view, properly left to the states. As Chief Justice Roberts framed the issue, does “[t]he global need to prevent chemical warfare … require the federal government to reach into the kitchen cupboard or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.” In a very rare (for this court, anyway) 9-0 decision, the justices said “no.”  In the court’s view, the government overreached on this one and should have let the state courts decide the guilt and punishment.  While Griswold* kept the feds out of our bedrooms on constitutional grounds, Bond seems to do the same for our kitchens on something akin to federalism rather than constitutional concerns. For the majority, the case hinged on the misapplication of the federal law and not stepping on the toes of the states in enforcing purely state concerns.  Roberts contends that the federal law didn’t apply to Bond though the reasoning is a little  fuzzy since by its express terms is clearly does.

The law forbids any person knowingly “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.” 18 U. S. C. §229(a)(1). It defines “chemical weapon” in relevant part as “[a] toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter as long as the type and quantity is consistent with such a purpose.” §229F(1)(A). “Toxic chemical,” in turn, is defined in general as “any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.” Seems pretty clear, right?

“Not so,” said the black robe cohort. “We do not find any such clear indication in section 229. “Chemical weapon” is the key term that defines the statute’s reach, and it is defined extremely broadly. But that general definition does not constitute a clear statement that Congress meant the statute to reach local criminal conduct.” Congressional intent seems to be the ticket. And to bolster that contention, CJ Roberts takes us on a whirlwind tour of chemical warfare and combat itself:

When used in the manner here, the chemicals in this case are not of the sort that an ordinary person would associate with instruments of chemical warfare. The substances that Bond used bear little resemblance to the deadly toxins that are “of particular danger to the objectives of the Convention.” Why We Need a Chemical Weapons Convention and an OPCW, in Kenyon & Feakes17 (describing the Convention’s Annex on Chemicals, a non-exhaustive list of covered substances that are subject to special regulation). More to the point, the use of something as a “weapon” typically connotes “[a]n instrument of offensive or defensive combat,” Webster’s Third New International Dictionary 2589 (2002), or “[a]n instrument of attack or defense in combat, as a gun, missile, or sword,”

(…)

The Government would have us brush aside the ordinary meaning and adopt a reading of section 229 that would sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room. Yet no one would ordinarily describe those substances as“chemical weapons.” There’s that kitchen reference again.

And lest you think combat is all that’s on the mind of our highest government officials, fear not. Even the plight of our little creatures does not escape their concern or largesse:

“That the statute would apply so broadly, however, is the inescapable conclusion of the Government’s position: Any parent would be guilty of a serious federal offense—possession of a chemical weapon—when, exasperated by the children’s repeated failure to clean the goldfish tank,he considers poisoning the fish with a few drops of vinegar. We are reluctant to ignore the ordinary meaning of “chemical weapon” when doing so would transform a statute passed to implement the international Convention on Chemical Weapons into one that also makes it a federal offense to poison goldfish.”

It’s a bless the beasts and the children moment now, wouldn’t you say? Hit it Karen!

Now that was refreshing.

As Kumbaya as that decision was for Ms. Bond and us, the more interesting comments come from those Darth Vaders of the Right, Alito and Scalia. Writing a concurrence that Justice Thomas liked too, the pair say the court did not go far enough to rein in the federales. The statute clearly applies, say the two, but it shouldn’t be enforced on more than the  lawyer mumbo-jumbo and Svengali-like intent divining  the majority relies upon. There’s more at stake. And here’s the genteel way they start their “agreement” that should warm their in-the-majority colleagues’ hearts:

“It is the responsibility of “the legislature, not the Court, . . . to define a crime, and ordain its punishment.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820) (Marshall, C. J., for the Court). And it is “emphatically the province and duty of the judicial department to say what the law [including the Constitution] is.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (same). Today, the Court shirks its job and performs Congress’s.’

And to keep our theme going, they’ve only just begun. Karen, please, if you’re ready:

Scalia sees a ghost hiding behind the enabling statute in question that enforces the terms of the treaty. Ghosts that could result in an abrogation of Second Amendment rights due to a treaty with Latvia. (I’m not kidding here). Let’s see how he gets there. First, Scalia tells us that treaties are Presidentially negotiated contracts between nations that the Senate has to approve. Nothing too earth-shaking there. Then, he explains that the power to contract with other countries doesn’t necessarily mean the power to legislate as a result or more precisely, the unfettered power to implement those agreements legislatively. The shaky earth part is here:

“By negotiating a treaty and obtaining the requisite consent of the Senate, the President . . . may endow Congress with a source of legislative authority independent of the powers enumerated in Article I.” L. Tribe, American Constitutional Law §4–4,pp. 645–646 (3d ed. 2000). Though Holland’s change to the Constitution’s text appears minor (the power to carry into execution the power to make treaties becomes the power to carry into execution treaties), the change to its structure is seismic.”

I’m seeing it now. Presidents and the Congress can negotiate treaties and in doing so contract away our constitutional rights by making an end run around our rights using  the enabling language of Article I, Sec. 8 of the Constitution.  Still a little fuzzy on that Latvia part though. How does that follow? Scalia actually makes a valid point:

“Federal Government may accomplish, with the right treaty in hand, are endless and hardly farfetched. It could begin, as some scholars have suggested, with abrogation of this Court’s constitutional rulings. For example, the holding that a statute prohibiting the carrying of firearms near schools went beyond Congress’s enumerated powers, United States v. Lopez, 514 U. S. 549, 551 (1995), could be reversed by negotiating a treaty with Latvia providing that neither sovereign would permit the carrying of guns near schools.

The point seems to be that an agreement with a foreign power on some particular concern, could result in the power of the court to defend the Constitution  being compromised.  Treaty as excuse to dilute separation of powers? Let’s look at the drug war in Mexico rather than the silly Latvia example of Nino. Could a treaty be constructed that would result in an agreement to ban automatic and semi-automatic weapons from being  possessed by citizens of both nations from an area near the Mexican border? The concern would be gun smuggling and the threat would be manifest. Could the Second Amendment be abrogated in a small geographic area for security concerns? My contempt for Scalia aside, the answer might be “yes” under Congress’ broad authority to approve and implement treaties. It could be argued that the intrusion on our rights is small given the geographic limitation and the government concern is compelling given the internecine bloodshed occurring just across the Rio Grande. Farfetched? Maybe not.

The problem is that we simply don’t know what limits exist on the President and Congress in negotiating treaties on foreign governments. And the culprit for this problem  are the courts who defer almost reflexively to the other two branches in matters of  foreign policy.  Of course in Reid v. Covert (1957). , a plurality opinion said that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.”  The doctrine in Reid has never been developed and it’s unlikely to happen because the problem is structural.  Article I puts no restriction on the  Congress in enabling the execution of treaties and Article II puts no limit on the President in negotiating them save only advice and consent of two-thirds of the Senate.  The courts are given no role in foreign affairs, only domestic ones, and they are loath (especially this SCOTUS) to fill in the constitutional gaps.

It’s a “For All We Know” moment and we don’t know much:

Writing his own concurrence, Justice Tomas makes just this point:

The Constitution does not, however, comprehensively define the proper bounds of the Treaty Power, and this Court has not yet had occasion to do so.As a result, some have suggested that the Treaty Power is boundless—that it can reach any subject matter, even those that are of strictly domestic concern. See, e.g., Restatement (Third) of Foreign Relations Law of the United States, §302, Comment c (1986).

Thomas argues that the power to enter treaties is not boundless despite the Restatement. And he warns that “A number of recent treaties reflect that suggestion by regulating what appear to be purely domestic affairs.” Thomas also worries that unfettered treaty making would undermine the separation of powers and leave one sub-branch out in the cold as far as law making is concerned:

“A treaty-based power of that magnitude—no less than a plenary power of legislation—would threaten “‘“the liberties that derive from the diffusion of sovereign power.”’” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 9). And a treaty-based police power would pose an even greater threat when exercised through a self-executing treaty because it would circumvent the role of the House of Representatives in the legislative process.”

These concerns are not meaningless in the context of an interdependent global system of governments that deal with all manner of political and economic and security concerns. As 9/11 so vividly pointed out, international cooperation is critical to all of these concerns. The question is just how much risk of our liberties are will willing to wager to have our cake and secure it, too.  Gloomy subject? yes. Raised by folks I usually disagree with? Yes, but the specters are discernible.

Karen, end it up, please:

*Griswold v. Connecticut, 381 U.S. 479 (1965)

Source: Bond v. U.S. (12-158).

~Mark Esposito, Weekend Contributor