Bond v. United States, , was a United States Supreme Court case concerning whether and how international arms control agreements may regulate local crime. More specifically, it found that an attack committed by the petitioner, Carol Anne Bond, involving dangerous toxicants, was not usage of a chemical weapon under section 229(a)(1) of the Chemical Weapons Convention Implementation Act (CWCIA), a law passed to bring the United States into compliance with the namesake treaty. The case followed up on a 2011 opinion of the same name involving the same parties.
Bond had been convicted of using a chemical weapon after she was caught spreading a mixture of toxic substances around her best friend's home, having learned of an affair between her and Bond's husband. Bond subsequently challenged her conviction on the basis that CWCIA section 229(a)(1) was an unconstitutional infringement on states' rights and that her actions did not violate it. After several years of litigation, including an initial trip to the Supreme Court, the Court heard the case in 2013 and decided it seven months later. Due to the apparent conflict between Bond's "local" crime and the CWCIA's passage pursuant to an international agreement, scholars of American federalism and foreign relations law, especially conservatives, were highly interested in the case's outcome, with some believing that the Court would overturn long-standing precedent on the topic.
The majority opinion, written by Chief Justice John Roberts, vacated Bond's conviction. It found that the CWCIA was not intended and could not properly be read to criminalize conduct like Bond's, given the Chemical Weapons Convention's goal of preventing chemical warfare and other potential mass-casualty scenarios. Samuel Alito, Antonin Scalia, and Clarence Thomas wrote concurrences agreeing with the case's outcome but arguing that the Court should have struck down section 229(a)(1) as unconstitutional.
Because the Court intentionally avoided constitutional questions in its majority opinion and did not overturn any precedents, the legal community largely characterized Bond as unexpectedly narrow and anticlimactic, though some observers have remarked that the case may have more significant implications for foreign relations and federalism than initially thought.
Background Treaties and federalism The United States Constitution contains two important clauses concerning treaties. Article II, which describes the powers of the president, grants the president the power, "by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur." Article VI describes treaties as forming part of the "supreme Law of the Land," alongside federal statutes and the Constitution itself. Furthermore, Article I, describing the powers of Congress, permits it to "make all Laws which shall be necessary and proper" to carry out other powers of the federal government.
Conversely, the Tenth Amendment restrains the federal government's powers to those described in the Constitution; other powers are "reserved to the States respectively." These provisions, taken together, raised questions over whether Congress could avoid potential states' rights objections to federal legislation by entering into treaties and then passing laws to implement these treaties, especially given that, according to Article VI, federal law preempts, or supersedes, the laws of individual states.
In 1920, the U.S. Supreme Court issued an opinion in Missouri v. Holland, which would prove to be "[t]he seminal decision concerning the scope of the treaty power," as described by Curtis A. Bradley. Holland implied that legislation passed by Congress pursuant to a treaty was almost always valid, even if it would otherwise exceed the powers allotted to the federal government. In 1957, this proposition was scaled back somewhat when the Supreme Court ruled in Reid v. Covert that treaties could not grant the government powers "free from the restraints of the Constitution." Holland nonetheless remained good law, and lower courts were hesitant to discard its thesis that treaties granted Congress authority that it normally would not have.
For much of the 20th century, the question of the treaty power's scope was thought moot because Congress already had extensive powers under other parts of the Constitution. In the 1990s, however, the Supreme Court began to institute and emphasize restraints on the federal government, reviving the debate over the treaty power's scope. Two prominent views in favor of overruling Holland were that of Nicholas Quinn Rosenkranz, who believed that treaty-implementing legislation could not exceed Congress's pre-existing powers, and Bradley, who argued that treaties themselves should be subject to the same limits as any other federal law. These arguments in favor of a limited treaty power were premised on the idea that treaties and their implementing legislation, if not properly checked, could infringe on the sovereignty afforded to states under the Tenth Amendment, and supporters and critics of Holland debated whether it comported with the intended design of the Constitution.
The possibility of revisiting Holland came up in 2012, when the Supreme Court considered Golan v. Holder, which concerned whether legislation passed to implement the Berne Convention, a treaty concerning intellectual property, exceeded Congress's power to establish copyrights. The government had argued that, even if the Court were to find that the legislation exceeded Congress's copyright powers, it would still be constitutional as treaty-implementing legislation under Holland. During oral arguments in Golan, Justice Antonin Scalia commented, "I do not think a treaty can expand the powers of the federal government," implying an openness to overturning Holland. However, Golan was ultimately decided without reliance on the Berne Convention or the treaty power.
Chemical Weapons Convention The Chemical Weapons Convention (CWC) is a multilateral treaty which prohibits countries from creating, using, or stockpiling chemical weapons. The CWC additionally obligates countries to ensure that non-state actors, such as individuals or organizations, do not obtain or use chemical weapons, including passing criminal legislation to punish such. The United States ratified the CWC in 1997 and Congress passed the Chemical Weapons Implementation Act (CWCIA) in 1998 to bring it in compliance with the treaty. Among other mechanisms to implement the CWC's goals, section 229(a)(1) of the CWCIA criminalizes individual possession and usage of chemical weapons, more specifically making it illegal to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon."
Events and procedural history
In 2005, microbiologist Carol Anne Bond learned that her husband had had an affair with her best friend, Myrlinda Haynes, resulting in pregnancy. Seeking vengeance upon Haynes, Bond stole 10-chloro-10H-phenoxarsine, an arsenic-based compound, from her workplace and ordered potassium dichromate from the Internet. She combined these chemicals into a toxic, bright-orange powder and dusted various surfaces around Haynes's home in Pennsylvania, including doorknobs and the inside of her car, with the substance. In doing so, Bond intended to harm Haynes, but not kill her.
However, the mixture's color alerted Haynes as to Bond's actions, and ultimately, the only injury Haynes suffered at Bond's hands was a small burn on her thumb. Haynes's mail carrier alerted the U.S. Postal Service, which videotaped Bond spreading the mixture on 24 separate occasions. Bond was subsequently arrested in 2007 and, after the trial court denied her motions to dismiss the charges, pleaded guilty to mail fraud and possessing and using a chemical weapon in violation of section 229(a)(1), reserving the right to appeal. After being sentenced to six years in prison, she appealed to the Philadelphia-based Third Circuit Court of Appeals.
The basis of Bond's appeal was that section 229(a)(1) was unconstitutional because it criminalized actions committed entirely within one state; regulating these "local" crimes is traditionally an exclusive power of the states rather than the federal government. Initially, however, the court of appeals found that Bond lacked standing to challenge the law. The Supreme Court reversed this finding on appeal in 2011, requiring the court to decide the actual merits of Bond's claim.
On remand, the court of appeals unanimously upheld her conviction, finding that section 229(a)(1) criminalized her assault on Haynes and, per Holland, was constitutional. Despite this, two of the three judges who heard the appeal, Kent Jordan and Thomas Ambro, suggested that the Supreme Court clarify the nature of Holland, with Ambro warning of a potential "blank check" for Congress to pass any law that was "rationally related to a valid treaty," while judge Marjorie Rendell wrote that federalism was irrelevant to the case. Bond appealed to the Supreme Court, which on January 18, 2013, granted certiorari again, this time to consider Bond's statutory and constitutional arguments.
Lead-up to the decision Bond's brief to the Supreme Court argued that section 229(a)(1) did not cover her assault on Haynes, and if it did, it exceeded Congress's Article I powers, while the government claimed that any usage of a chemical to harm violated the statute and that a ruling in favor of Bond would, by hampering the ability to implement treaties, cause international concern that the U.S. would not uphold its international obligations. Due to the constitutional question raised by Bond, a significant portion of the legal community believed that the outcome of her case would be a watershed in American federalism and foreign relations, with NPR characterizing it as "the most important decision on the treaty power since 1920 [when Holland was decided]." Given the subject matter of the case, John Bellinger referred to it as "a cause célèbre among some conservatives," and political commentator George Will called it the "most momentous issue" of the term.
On the other hand, Peter Spiro questioned the importance of a decision in Bond's case, noting that few if any instances of Congress actively exercising the treaty power existed, and that most laws passed pursuant to treaties could be passed as more typical legislation. Rick Pildes wrote that, because the subject of the case was Congress's Article I powers to implement treaties, rather than the president and Senate's Article II powers to enter into them, even a favorable ruling for Bond could be circumvented by making a treaty "self-executing," or effective without the need for implementing legislation. Julian Ku agreed and wrote that, if Holland were overruled, it could encourage the government to enter into more self-executing treaties.
Several amicus briefs were submitted to the Court. The Cato Institute, the Claremont Institute's Center for Constitutional Jurisprudence, the Atlantic Legal Foundation, and Edwin Meese jointly submitted a brief arguing that Holland should be overruled. Other briefs supporting Bond came from the Home School Legal Defense Association, Center for Individual Rights, and American Center for Law & Justice. Eric Posner castigated the Cato Institute brief in particular as engaging in a "literal-minded" reading of the Constitution, comparing it to how "a kindergartener [sic] might read a board book" and calling it a sign of "the degraded state of our legal culture." Bond also found an ally in Senator Ted Cruz, who wrote an article for the Harvard Law Review supporting her constitutional arguments.