Poisoning Not (Necessarily) a Federal Crime under a WMD Treaty, or, Small Victories

Posted on June 2, 2014 by

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The United States Supreme Court has issued a ruling in the little-known but important case of Bond v. U. S.  The facts are as follows:  One Carol Bond discovered that her husband was having an affair with Carol’s best friend.  She decided the best way to respond was to spread a poisoned chemical on surfaces her friend might touch (thankfully no harm resulted).  Mrs. Bond was then charged, not under a simple state criminal statute, but under the United States statute entitled the Chemical Weapons Convention Implementation Act of 1998, which was enacted to implement the Chemical Weapons Convention (a treaty).  I must say that on the face of it, the case seemed bizarre—why “kill a fly with a two-by-four” unless some ambitious Federal prosecutor wanted to make a name for himself.  At any rate, the Supreme Court held that the language of the statute, for reasons having to do with federalism, was not applicable to Bond (I have not yet read the opinion).  Well, the seemed obvious.  It is such a shame that several years and much money and time have to be spent to obtain this outcome. 

However, the case did present some other interesting issues, which the Court declined to address in its majority, though the justices did express their own opinions in partially concurring and dissenting opinions.  Just as an aside, it is always an adventure to read the combinations of partially concurring, partially dissenting, completely concurring, completely dissenting, etc., separately written, opinions of justices.  The other issues addresses were: (1) Whether there are any “structural limits” to the power of Congress to implement a treaty and (2) whether the language itself can be interpreted as broadly as it was by the government (the court here held the meaning ambiguous—I suppose that is as good as we can get). 

The first issue is really interesting, and I wish the court had ruled on it.  Justices Antonin Scalia, Clarence Thomas and Samuel Alito weighed in here.  They would have placed limits on the status and applicability of a treaty to domestic issues and to the power of Congress to implement a treaty.  In particular, Scalia would have limited the power to implement to “ordinary” Article I, section 8 provisions of the Constitution. 

What can we take from this.  First, at least the Court is willing to find a way to limit the nearly unlimited discretion of Federal prosecutors to distort statutory uses for their own purposes.  We are saved to some extent from another expansion of Federal power in intrude on our lives via criminal statutes not having anything to do with the act itself.  Second, we see that the Court still defers too much to both Congress and the Executive when it comes to the meaning and scope of the Constitution.  In particular, I would have very much liked to have seen the Court determine once and for all that treaties cannot regulate domestic affairs insofar as those issues fall under the scope of the Constitution.  As it stands, there is still ambiguity as to whether a treaty can override our own “social contract,” the Constitution, which is our fundamental law and cannot be altered except by the people themselves.

Maybe I should just be thankful for small victories.

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