This week the Supreme Court unanimously ruled in Bond v. United States that “the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”
This was the second time this case came before the Court. The justices voted 9 to 0 that Obama administration cannot use federal laws forbidding chemical weapons to go after a jilted wife who attempted to punish her husband’s mistress. But conservatives are deeply disappointed, as only three justices were willing to take on the important constitutional issue raised in this case.
Carol Anne Bond discovered in 2006 that her husband committed adultery with her friend–Myrlinda Haynes–getting her pregnant. For revenge, Bond attempted to poison Haynes, putting toxic chemicals on Haynes’ front door, mailbox, and car door.
These attacks in 2006 and 2007 were intended to hurt Haynes, not kill her. And Haynes’ only injury from these repeated episodes was a minor thumb burn.
Federal postal examiners traced the chemical to Bond. She was arrested, and charged with postal crimes for tampering with Haynes’ incoming mail. But then the U.S. Justice Department also convicted her in federal district court in Pennsylvania for violating the Chemical Weapons Convention Implementation Act.
The federal government prosecuted Bond in the same manner they would an international terrorist who used chemical weapons. The U.S. Court of Appeals for the Third Circuit affirmed Bond’s conviction. On June 2, 2014, the Supreme Court reversed it.
Chief Justice John Roberts wrote the opinion for six justices, joined by the Court’s four liberals plus moderate Anthony Kennedy. He wrote that President Bill Clinton signed a treaty–the Chemical Weapons Convention–which the U.S. Senate ratified in 1997 by the Constitution’s requisite two-thirds vote. The treaty is not self-executing, so Congress passed the Implementation Act in 1998 to fulfill its obligations.
Roberts wrote why this statute implementing the treaty could not be used to prosecute Bond’s attempted revenge:
But even with its broadly worded definitions, we have doubts that a treaty about chemical weapons has anything to do with Bond’s conduct. The Convention, a product of years of worldwide study, analysis, and multinational negotiation, arose in response to war crimes and acts of terrorism.
Eric Holder’s Justice Department argued that Bond was using chemicals, and did so in a way intended to cause harm. The Court rejected that argument, responding:
The problem with [the Obama administration’s] interpretation is that it would dramatically intrude upon traditional state criminal jurisdiction, and we avoid reading statutes to have such reach in the absence of a clear indication that they do.
“Perhaps the clearest example of traditional state authority is the punishment of local criminal activity,” Roberts later added. Longstanding precedents “make clear that it is appropriate to refer to basic principles of federalism embodies in the Constitution to resolve ambiguity in a federal statute.”
The majority also rejected the argument that chemicals like the ones used to Bond were weapons. “Saying that a person used a chemical weapons conveys a very different idea than saying the person used a chemical in a way that caused some harm… We are reluctant to ignore the ordinary meaning of ‘chemical weapon’ into one that makes it a federal offense to poison goldfish.”
The Court also noted its conclusion doesn’t allow Bond to escape punishment. Roberts wrote, It is also clear that the laws of the Commonwealth of Pennsylvania (and every other State) are sufficient to prosecute Bond.”
The Obama administration complained that the local prosecutors here only charged Bond with a minor crime. But the Court responded that state prosecutors decide what crimes to pursue, and their choice does not mean the federal government can supplant them.
The Supreme Court’s three solidly-conservative justices concurred only in the judgment that Bond’s conviction must be reversed. But they would have reversed on constitutional grounds by holding the federal statute unconstitutional, not by reinterpreting the statute.
Justice Antonin Scalia, joined by Justice Clarence Thomas and in part by Justice Samuel Alito, wrote:
It is the responsibility of the legislature, not the Court, to define a crime, and ordain its punishment. And it is emphatically the province and duty of the [courts] to say what the law–including the Constitution–is. Today, the Court shirks its job and performs Congress’s. As sweeping and unsettling as the Chemical Weapons Convention Implementation Act of 1998 may be, it is clear beyond doubt that it covers what Bond did; and we have no authority to amend it.
Scalia rejected the overall approach Roberts used, writing, “The Court’s account of the clear-statement rule reads like a really good lawyer’s brief for the wrong side, relying on cases that are so close to being on point that someone eager to reach the favored outcome might swallow them.”
He also rejected Roberts’ reasoning that the incident didn’t involve what one normally calls “chemical weapons,” noting that the statute actually defines that term, and Bond’s chemicals are within the statute’s broad definition.
Scalia later added that Roberts’ approach of looking at context to determine if a chemical is a chemical weapon in a particular situation makes a bad situation worse. “Thanks to the Court’s revisions, the Act, which before was merely broad, is now broad and unintelligible.”
Thomas, joined by Scalia and in part by Alito, filed separately, beginning, “I write separately to suggest that the Treaty Power is itself a limited federal power.” Noting the implications of arguing treaties can reach any issue, Thomas reasoned, “I doubt the Treaty Power creates such a gaping loophole in our constitutional structure.” He spent several pages exploring evidence that treaties “can be used to arrange intercourse with other nations, but not used to regulate purely domestic affairs.”
While Obama suffered a serious defeat in this case, for conservatives it was an enormous missed opportunity. As Scalia–joined by Thomas–concluded, “We have here a supposedly ‘narrow’ opinion which, in order to be ‘narrow,’ sets forth interpretive principles never before imagined that will bedevil our jurisprudence (and proliferate litigation) for years to come.” Regarding a very old case’s suggestion statutes can reach almost any issue if necessary to carry treaties into effect, they added, “we should have welcomed and eagerly grasped the opportunity–nay, the obligation–to consider and repudiate it.”
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.