At the Supreme Court on Tuesday, the Justices spent little time on the lurid facts concerning a Pennsylvania woman who poisoned her romantic rival, but a majority of the court expressed concern regarding the government’s choice to prosecute the woman under a federal law designed to ban chemical weapons.
At issue is the case of Carol Anne Bond, who learned her husband was the father of her best friend’s baby. Bond used her background as a microbiologist to attempt to poison her friend, Myrlinda Haynes. Bond used a combination of chemicals that she stole from her boss and bought on the Internet.
Throughout the ordeal, Haynes’ worst injury was a thumb burn from the chemicals, some of which were smeared on her mailbox. That brought postal inspectors into the case, who set up a hidden camera to catch the culprit.
Love triangles aside, what interested the Justices was the fact that Bond was not prosecuted locally, but under a federal law passed to comply with a Chemical Weapons Convention treaty.
Indeed, the case illustrates a long-simmering dispute regarding the balance of power between the federal government and the states. Specifically, whether there are constitutional limits to Congress’ power to implement a treaty.
Paul Clement, a lawyer for Bond, said that the law intrudes on the police power that is reserved for the States. He said if the Justices find that the statute “really does reach every malicious use of chemicals, anywhere in the nation” than it “clearly exceeds Congress’s limited and enumerated powers.”
Justice Samuel Alito couldn’t believe that the government had actually charged Bond under the Chemical Weapons Convention and Implementation Act.
“If you told ordinary people that you were going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted,” he said.
Justice Anthony Kennedy told Solicitor General Donald B. Verrilli that it seemed “unimaginable that you would bring this prosecution.”
Alito noted the breadth of the statute used to prosecute Bond. “Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?”, he said. “On Halloween we gave them chocolate bars. Chocolate is poison to dogs so it’s a toxic chemical.”
Justice Stephen Breyer joined the conservative justices’ line of inquiry, wondering if the statute could include cyclist Lance Armstrong, accused of unlawfully taking drugs.
Justice Antonin Scalia worried about the Federal government intruding into an area reserved to the states and “dragging Congress into areas where it has never been before. ”
Chief Justice John Roberts asked Verrilli, “if there’s any situation in which you believe an erosion or intrusion by the Federal Government on the police power could be a constraint against an international treaty?”
Clement said the court’s cases have made clear “that it is a bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct without regard to a jurisdictional element or some nexus to a matter of distinctly Federal concern.”
But Justice Sonia Sotomayor pushed back in support of the law that was passed to implement the treaty. She said there is “no doubt that chemical weaponry is at the forefront of our foreign policy efforts right now.”
“Look at the Syria situation alone,” she said. “It would be deeply ironic that we have expended so much energy criticizing Syria , when if this court were now to declare that our joining or creating legislation to implement the treaty was unconstitutional,” she said.
Justice Elena Kagan wondered about an individual that might use a chemical like Sarin gas.
Solicitor General Donald B. Verrilli Jr. said that the framers gave the Federal Government exclusive control over the treaty function “to ensure that it could knit the nation together as one and allow it to be fully sovereign in the conduct of foreign affairs.” He said that a claim that the conduct was somehow “too local” to fall under the federal law should be rejected.
Although Clement allowed that the Justices could rule narrowly in a way that is specific to Bond’s case, Georgetown Law professor Nicholas Quinn Rosenkranz hopes the Justices will look more broadly at the treaty power.
“The Solicitor General got some very difficult questions.” Rosenkranz said after arguments. “Several Justices are clearly concerned that if a treaty can increase Congress’s legislative power, then Congress’s power is effectively unlimited. If Congress can reach an utterly local domestic dispute like this one, then Congress can reach everything.”
The case will be decided by July.