Bond v. United States: The Unintended Consequences of a Chemical Weapons Treaty

By: James Gossmann

How often does an act of infidelity lead to a Supreme Court case questioning century old precedent on the legislative powers of Congress? And what are the odds such a case also involves an international chemical weapons treaty? Safe to say Bond v. United States has it all, along with the scope of its ramifications only exceeded by the soap opera like plot line.

The United States has a nebulous relationship with international law at best. With notable absences from treaties ranging from child rights to anti-personnel mines, the U.S never wants to subject itself or its citizens to foreign courts. The majority of treaties it signs falls under the category of non-self-executing, which essentially means the U.S. believes the treaty is a good idea and will sign on the dotted line, but it will have zero effect on the United States until a concurrent law is passed by Congress.

This case revolves around the actions of Carole Anne Bond in 2006 upon learning that her best friend, Ms. Haynes, was pregnant. The father, however, was none other than Bond’s husband. As an act of revenge, Bond purchased several legal chemicals with which she proceeded to coat the surface of Ms. Haynes’ mailbox, doorknobs and car door. Luckily for Ms. Haynes, this poison exhibited a bright orange color, so she was able to avoid injury.

Bond was first charged under state law, until a federal prosecutor sought jurisdiction under the Chemical Weapons Convention Implementation Act. This Act was passed in order to enact the provisions of the Chemical Weapons Convention, which the United States was a signatory to in 1998. The issue here is that Bond, as an American citizen, is being charged based on the terms of an international treaty, which goes far and beyond the scope of Congress’ enumerated powers as set out in Article I, Section 8 of the Constitution.

There is a revered precedent surrounding this issue. In 1920, the Supreme Court held in Missouri v. Holland that Congress can pass a law which prohibited hunters from shooting migratory birds based on a treaty with Canada.  The significance of the decision was that it rubber stamped the practice of enacting legislation exceeding its enumerated powers as long as the U.S had signed an international treaty.

How, Bond asks, does the federal government gain the power to make a federal issue out of a case of poisoning? What kind of slippery slope are we allowing to develop if Congress can bypass its constitutional limits and overrule state laws? Would there be no limit to what laws Congress could pass merely through signing an international treaty?

The federal government claims these questions take the issue to unattainable hyperbole. Congress would never seek to pass any law that is unconstitutional. Congress has the express power to ratify international treaties, and the necessary and proper cause gives Congress the power to enact laws which would implement such valid treaties. A verdict for Bond would severely compromise the international standing of the United States, creating uncertainty as to whether the federal government could carry out and abide by its international commitments. The law would be deemed constitutional anyway, fitting in nicely under the commerce clause with the poison being placed on federal mailboxes. Finally, if none of those arguments are convincing, the Supreme Court could just interpret the law as only governing real chemical weapons use, not a spiteful poisoning using legal chemicals, and rule that the federal charges be thrown out.

There are correlations between the argument in the Bond case and the argument set forth in the constitutional challenge to Obamacare. The Court only approved the Affordable Care Act on Congress’ taxing power, while finding that the “necessary and proper” clause argument was an unconstitutional infringement on state’s rights. Bond is seeking to make the same argument here that the implementation of the treaty is an infringement on state’s rights, and does not fall under the necessary and proper clause of the constitution.

There are serious political undertones to this case, which have caused both sides of the aisle to sit up and take notice. Republicans fear that affirming the Missouri v. Holland precedent would open the door to gay rights treaties, abortion treaties, and gun treaties, which could later be executed by Congress into binding law free from scrutiny since they would simply implement a treaty. Meanwhile, Democrats are worried that holding in Bond’s favor would limit the power of any future legislation, as unwilling parties would be encouraged to bring suit in the hopes of “eroding the government’s power.”

The issues of this Supreme Court case appear to dictate that a dramatic shift, one way or another, will occur once the decision is passed down. Yet despite all the arguments that this case will be the decider of treaty power, Bond v. United States is not the be all and end all of this issue. If Bond wins, the President and Senate will still be able to pass legally binding treaties through the rarely used practice of a self-executing treaty; one which does not require a parallel act of congress to make legally binding. The impact on international affairs will also be minimized by the rising trend of executory agreements between leaders. A trend which seems likely to continue given President Obama’s remarks at the most recent State of the Union address. Meanwhile if Bond loses, a key point that should limit the fears of Republicans is that any treaty requires a two-thirds majority vote in the Senate in order to be ratified. Therefore, the bogey man of an international treaty that would undermine any conservative issues would still have to recruit some Republican votes in the Senate in order to pass. The only reason this law passed was because no Republican could ever imagine a ban against chemical weapons infringing on state’s rights!

While a decision is pending, there was not a clear indication during oral arguments as to which side was swaying the justices. And although the verdict has the potential to be influential for both sides, it is quite possible that the Court will sidestep all these issues and simply hold that Bond’s actions fall under the peaceful use of chemicals, and thus dismiss the case. Talk about anticlimactic.

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