Bond v. United States: Validity and Construction of the Federal Chemical Weapons Statute
Released: 2014-06-20T00:00:00

Introduction

On June 2, 2014, the United States Supreme Court overturned Carol Bond's conviction under the Chemical Weapons Convention Implementation Act as a matter of congressional intent rather than Congress's constitutional authority. The Court concluded that Congress could not have intended the Act to reach "run of the mill" local crimes like Mrs. Bond's.

It had been anticipated that the Court might take the opportunity to clarify the scope of Congress's legislative authority under the treaty power. It elected instead to emphasize, for purposes of statutory interpretation, the Constitution's structural constraints on federal intrusions into the domain of the states.

Background

On numerous occasions, Carol Bond, a microbiologist, coated the car door handles and mailbox of her husband's paramour with a mixture of toxic chemicals. Although Mrs. Bond's efforts were clumsily done, the victim did on one such occasion sustain a minor chemical burn on her thumb. Mrs. Bond was eventually implicated and indicted in federal court for possession and use of a chemical weapon in violation of 18 U.S.C. 229(1)(a). Reserving the right to appeal, she pled guilty and was sentenced to imprisonment for six years.

On appeal, Mrs. Bond argued that the implementing statute under which she was convicted was either unconstitutional or inapplicable. The United States Court of Appeals for the Third Circuit initially ruled that she lacked standing to raise the constitutional issue, since the Tenth Amendment exists for the protection of state, not individual, rights. The Supreme Court disagreed and returned the case to the Court of Appeals for a decision on the merits.

Mrs. Bond's constitutional claim was grounded on the argument that the legislation is an intrusion upon sovereign prerogatives of the states with respect to local criminal offenses. The government has responded that (1) the authority to negotiate and ratify the Chemical Weapons Convention comes within the President's constitutional treaty making power; (2) enactment of legislation to implement the Convention comes within Congress's authority to make laws necessary and proper to carry into execution the President's treaty making power; and (3) Mrs. Bond's conduct was condemned by a literal reading of the implementing legislation's criminal proscriptions.

Mrs. Bond's Constitutional Challenge

To prevail on her constitutional challenge, Mrs. Bond needed to reconcile her position with the Supreme Court's decision in Missouri v. Holland. In Missouri v. Holland , state officials sought to enjoin federal enforcement of the Migratory Bird Treaty Act, which they argued constituted an intrusion on state authority in violation of the Tenth Amendment. Prior to ratification of the treaty, lower federal courts had held that the Tenth Amendment limited Congress's constitutional authority to enact a similar measure. The state argued that the treaty could not vest Congress with legislative power that would otherwise rest beyond its constitutional reach.

The Supreme Court, speaking through Justice Holmes, began with the observation that it was "not enough to refer to the Tenth Amendment, reserving the powers not delegated to the United States, because by Article II, §2, the power to make treaties is delegated expressly.... If the treaty is valid there can be no dispute about the validity of the statute under Article I, §8, as a necessary and proper means to execute the powers of the Government." The treaty collided with no explicit constitutional prohibition. The only question was whether the treaty was "forbidden by some invisible radiation from the general terms of the Tenth Amendment."

Justice Holmes did not suggest that the question might never be answered in a state's favor; only that the state's interest was insufficient in the case before the Court. Missouri claimed exclusive authority over the birds within its domain. The treaty protected birds with international migratory habits, threatened with extinction by virtue of the hunting practices in some of the states they traversed. The federal interest was substantial, and Missouri's interest was not enough to cast doubt on the validity of the treaty or its implementing statute.

Although the Court in Holland identified no Tenth Amendment-implicit, contextual limits on Congress's legislative authority, it has done so in other cases. Thus, the Court has held that Congress may not "commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program." Moreover, it has been said that legislation cannot be considered Necessary and Proper, if it fails to recognize the contextual limitations that flow from the Constitution's presumption of dual federal-state sovereignty.

All of which proved to be of no avail for Mrs. Bond in the Third Circuit. The court concluded that the Convention was a proper subject for the President's treaty making power. Moreover, "with practically no qualifying language in Holland to turn to, [appellate courts] are bound to take at face value the Supreme Court's statement that 'if the treaty is valid there can be no dispute about the validity of the statute ... as a necessary and proper means to execute the powers of the Government,'" federalism concerns notwithstanding.

A concurring member of the panel, however, expressed the hope that the Supreme Court would "flesh out the most important sentence in the most important case about the constitutional law of foreign affairs, and in doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it."

Mrs. Bond's Application Challenge

Mrs. Bond contended that the focus of the Chemical Weapons Convention and its implementing legislation are so distinct that Congress could not have intended them to apply to her conduct. The nature of the statute made her claim creditable; its breadth made it difficult.

The United States signed the Convention on the Prohibition of Development, Production, Stockpiling and Use of Chemical Weapons and On Their Destruction (the Convention) in Paris on January 13, 1993. The President supplied a capsulized description of the Convention when he transmitted it to the Senate:

The convention will require States Parties to destroy their chemical weapons and chemical weapons production facilities under the observations of international inspectors; subject States Parties' citizens and businesses and other nongovernmental entities to its obligations; subject States Parties' chemical industry to declarations and routine inspection; and subject any facility or location in the State Party to international inspection to address other States Parties' compliance concerns.

The Convention requires signatories to condemn within their jurisdictions those activities it has agreed to forego. More specifically, "each State Party is prohibited from ... (b) Using chemical weapons under any circumstances , including retaliatory use (which many countries protected under the Geneva Protocol of 1925).... " Each nation must establish corresponding restrictions upon individuals and entities found within its own jurisdiction. That is, "each State Party must ... (c) Extend its penal legislation enacted under subparagraph (a) above to any activity prohibited to a State Party under the Convention undertaken anywhere by natural persons, possessing its nationality, in conformity with international law."

The Senate did not readily give its advice and consent on the Convention. The Senate Foreign Relations Committee held six days of hearings towards the close of the 103 rd Congress. The committee heard further witnesses during the 104 th , and issued a favorable executive report under which the Senate's advice and consent would have been subject to 7 conditions and 11 declarations. Even so, the Convention apparently lacked the votes, for it was never brought to the floor.

Pressed by time deadlines within the Convention during the 105 th Congress, the Senate discharged the Foreign Relations Committee from further consideration of the Convention. The Senate only then gave its advice and consent subject to page after page of conditions—none of them addressed to the criminal penalties which the Convention obligated the United States to enact with respect to the use of chemical weapons.

Implementing proposals appeared in both the House and Senate shortly thereafter. The Senate held hearings and passed an amended version of its bill. A year later, the proposal that became the Chemical Weapons Convention Implementation Act was tucked in towards the end of the 900-plus-page Omnibus Consolidated and Emergency Supplemental Appropriations measure.

Throughout the ratification debate, the principal concerns were the protection of United States businesses subject to international inspection and doubts that the pact would lead to international chemical weapons disarmament. The need to protect American industry during the international inspection process drove the compromises necessary for Senate passage of implementing legislation.

There can be little doubt, however, that Mrs. Bond's conduct fell within a literal reading of the implementing legislation. The legislation outlaws knowingly using a chemical weapon. A chemical weapon is any toxic chemical, and a toxic chemical is any chemical that "can cause death, temporary incapacitation or permanent harm to humans or animals." The legislation does establish several exceptions, such as the exceptions for possession by members of the Armed Forces or the exceptions for use for peaceful purposes "related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity." Neither these nor any of the other exceptions, however, seem to fit Mrs. Bond's conduct.

On appeal, the Third Circuit conceded that the implementation legislation's "breadth is certainly striking, seeing as it turns each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache." Nor was it impressed with the government's decision to press prosecution. Yet at the end of the day, Mrs. Bond's conduct satisfied the statute's broadly drafted elements. The Third Circuit affirmed her conviction and set the stage for Supreme Court review.

The Court's Decision in Bond

The Supreme Court unanimously agreed that Mrs. Bond's conviction must be overturned. For a majority of the Court, the primacy of the states over criminal matters provided a presumption of statutory construction that could not be rebutted in Mrs. Bond's case. For the three concurring Justices—Scalia, Thomas, and Alito—the constitution does not permit the federal government to outlaw Mrs. Bond's conduct based on the treaty power.

Majority Opinion

Chief Justice Roberts, writing for the Court, began his analysis with a reminder that the federal government may exercise only those legislative powers which can be traced to a specific grant in the Constitution, and, more importantly, that the states are the residual domain of criminal law. The Constitution grants the federal government no power to enact and enforce general criminal laws, although it may enact and apply specific prohibitions incidental to the powers which it has been given, such as the power to regulate interstate and foreign commerce or the power to implement treaties.

Before considering Mrs. Bond's constitutional challenges, the Court thought it prudent to determine whether the federal government enjoyed statutorily authority to prosecute her. Yet, it interpreted the statute using constitutional principles:

These precedents make clear that it is appropriate to refer to basic principles of federalism embodied in the Constitution to resolve ambiguity in a federal statute. In this case, the ambiguity derives from the improbably broad reach of the key statutory definition given the term—"chemical weapon"—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute's expansive language in a way that intrudes on the police power of the States.

The Court felt Congress gave no such indication. In fact, the statute's language and context convey a different message. The statute speaks of chemical weapons, not the household chemicals an expansive reading would encompass. The context reflects an international concern that nations or their agents might develop and maintain the capacity to engage in chemical warfare, not that individuals would use the materials at hand to settle a domestic dispute.

"In sum," said the Court, "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. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise."

Concurrences

Justices Scalia, Thomas, and Alito agreed that Mrs. Bond's conviction should be overturned, but on constitutional rather than statutory grounds. Justice Scalia, in an opinion joined by Justices Thomas and Alito, wrote that the statute clearly outlawed Mrs. Bond's conduct. He characterized the majority opinion as rewriting the statute, yet leaving it in a form in which its exact prohibitions cannot be discerned. For Justice Scalia, the treaty making power is the power to make treaties, not to implement them. The authority to implement a treaty must come from one of the other enumerated powers. The government asserted that the treaty-making power authorized the statute under which Mrs. Bond was convicted. In the eyes of the concurring Justices, it did not, and it could not.

Justice Thomas offered a separate concurrence to emphasize that in his mind "the Treaty Power can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs."

Justice Alito joined much of Justice Thomas's concurrence and expressed the view "that the treaty power is limited to agreements that address matters of legitimate international concern.... But insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power."

Conclusion

A majority of the Supreme Court preferred not to use Mrs. Bond's conviction as a vehicle to define the scope of Congress's legislative authority under the treaty power. It may be that there is no majority view of the scope of the treaty power. It may be that a majority would prefer to clarify the scope of treaty power without having to find that the federal government has overstepped its constitutional bounds. It may be that a majority considered the Bond case an aberration, and found the fact pattern of "this curious case" ill-suited to demonstrate the bounds of the treaty power. It may be a majority of the Court finds the Missouri v. Holland declaration a satisfactory statement of the law. It may be a majority preferred to resolve the case on statutory grounds so as not to call in question other treaty implementing legislation. It may be, as Court opinion stated, that a majority would simply prefer to resolve cases using principles of statutory rather than constitutional construction, whenever possible. It may be that several of these factors were in play. The only thing that can be said with certainty is that the Third Circuit's opinion has been reversed, and the case remanded there for disposition consistent with the Supreme Court's opinion.