“Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.” That observation, first penned by English playwright and poet William Congreve, certainly applies to Carol Anne Bond. Her amateurish attempts at revenge have resulted in two trips to the Supreme Court of the United States and will likely result in one of the most consequential constitutional cases in the next, or any, term. The justices must decide whether our Congress is one of limited powers or whether the Treaty Power grants Congress potentially unlimited power to regulate anything, anywhere, at any time.
In 2006, Carol Anne Bond discovered that her best friend, Myrlinda Haynes, had an affair with her husband and was pregnant with his child. Vowing revenge, Bond, who was a technical assistant working for a large chemical manufacturer, spread chemicals (one purchased online, the other stolen from her employer) on Haynes’ car door, mailbox, and apartment doorknob on 25 occasions over the course of three months. Although Haynes was able to detect the presence of these chemicals because of their distinctive color, on one occasion she forgot to clean the door knob and suffered a minor chemical burn on her thumb. Bond was apprehended after federal postal inspectors placed surveillance cameras around Haynes’s home and identified her as the perpetrator. Rather than leave this salacious, but garden variety crime to local authorities, federal prosecutors pursued a rather novel approach: charging Bond with violating the Chemical Weapons Implementation Act of 1998 (CWIA), a statute designed to implement the United States’ treaty obligations under the 1993 Chemical Weapons Convention.
The Chemical Weapons Convention, ratified by the Senate in 1997, is an international arms-control agreement that was intended to address the proliferation of weapons of mass destruction by outlawing the production, stockpiling, and use of chemical weapons. Because the treaty was not self-executing, Congress passed the CWIA, 18 U.S.C. §§ 229 et seq., making it unlawful for a 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.”
Bond’s conduct clearly violated state law but would not appear to implicate any core concern of the treaty. She moved to dismiss the charges arguing that, as applied to her, section 229 exceeded Congress’s enumerated powers and invaded the powers traditionally reserved to the States by the Tenth Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”). Bond also challenged the statute as exceeding Congress’s power under the Commerce Clause, but the government responded that section 229 was not passed pursuant to any Article I, Section 8 enumerated power of Congress, but rather was passed pursuant to the Treaty Power and the Necessary and Proper Clause.
The trial court denied Bond’s motion, and she pled guilty, reserving the right to appeal. On appeal, the U.S. Court of Appeals for the Third Circuit ruled that Bond lacked standing to challenge the CWIA, but in June 2011, the Supreme Court unanimously reversed in an opinion by Justice Anthony Kennedy (Bond I), holding that a criminal defendant indicted under a federal statute has standing to challenge that statute on the grounds that it interferes with States’ rights under the Tenth Amendment.
On remand, the Third Circuit affirmed Bond’s conviction, expressing reluctance but believing itself “bound to take at face value” a single sentence in the 1920 Supreme Court case Missouri v. Holland, in which Justice Oliver Wendell Holmes wrote:
In Bond’s second trip to the Supreme Court, the question that the justices will address is whether the Treaty Power expands Congress’s power beyond its enumerated powers set forth in Article I, section 8...
Most international treaties are premised on the assumption that all nations have the same structure and can therefore implement treaties in the same way. However, unlike most other countries, we have a federal system in which many of the subjects covered by treaties are, or at least heretofore have been, left to state and local governments and to the people themselves to address as they see fit. Indeed, unlike other countries, the Supreme Court made clear in cases such as Printz v. United States, that our Constitution limits the authority of the federal government to insist that state officials act as its agents to carry out federal policy. If the legislative power can be increased without limit as to scope or subject matter by treaty, this would represent a significant disruption of the delicate balance of our federal system and would undermine the fundamental principle that Congress’s powers are limited to those enumerated in Article I, Section 8.