U.S. Supreme Court justices indicated they are likely to put new limits on Congress’s power, as they weighed the case of a microbiologist who was prosecuted under a chemical-weapons law for trying to poison her husband’s lover.
Hearing arguments today in Washington, a majority of the justices suggested that they viewed Carol Anne Bond’s crimes as local ones that shouldn’t have opened her to prosecution under a federal law enacted to implement a chemical-weapons treaty.
It is “unimaginable that you would bring this prosecution,” said Justice Anthony Kennedy midway through a rapid-fire session highlighted by questions about Lance Armstrong and one justice’s distribution of Halloween candy.
The case poses the most important test of the federal government’s authority since the Supreme Court upheld President Barack Obama’s health-care law last year. The central question is whether Congress can use its constitutional power to implement treaties to regulate local conduct that otherwise would be beyond the federal government’s reach.
Bond’s lawyer, Paul Clement, contended that a treaty can’t give Congress “police power” the U.S. Constitution normally reserves to the state. Today’s hearing indicated that as many as six members of the court may agree with that contention.
Federal prosecutors charged Bond with violating the 1998 Chemical Weapons Convention Implementation Act, a law that carries out a 1997 treaty covering the development, production, stockpiling and use of chemical weapons. The treaty, which supplements an earlier accord that applies in wartime, was designed in part to protect against the use of chemicals by terrorists.
The Obama administration, backed by the chemical industry, is defending the prosecution. The administration says Bond’s argument would undermine the president’s ability to reach agreements with other countries and cut against a centuries-old understanding of the Constitution’s treaty power.
Several justices suggested the administration’s argument would turn the chemical-weapons law into a sweeping override of the rights of the states. Justice Stephen Breyer said he could point to a list of chemicals “a thousand miles long” -- including the performance-enhancing drugs used by cyclist Lance Armstrong -- that might be covered under the law as interpreted by the administration.
Alito drew laughter when he said he and his wife “distributed toxic chemicals to a great number of children” a few nights earlier on Halloween.
Alito said an ordinary person would be “flabbergasted” to learn that Bond’s conduct was considered a use of chemical weapons.
The administration drew support from Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. Sotomayor pointed to a 2005 Supreme Court decision allowing federal prosecutions over locally grown medical marijuana.
“If it’s OK to regulate the possession of marijuana, a purely local crime, why is it unconstitutional to regulate the use of something that can kill or maim another human being?” Sotomayor asked.
U.S. Solicitor General Donald Verrilli told the justices that the constitutional framers put the matter of treaties “exclusively in the hands of the national government.”
The clash comes to the court through a tale worthy of a daytime drama. Bond, a Pennsylvania resident, learned in 2006 that her husband had impregnated her closest friend, Myrlinda Haynes.
Bond then stole a bottle of an arsenic-based substance from her employer, the chemical maker Rohm & Haas Co. She used the Internet to order a second toxic chemical, potassium dichromate, which is commonly used in printing photographs.
Bond, now 42, tried to poison Haynes 24 times over the next several months, spreading the chemicals on her doorknob, car door handles and mailbox. Although Haynes usually avoided touching the substances, on one occasion she suffered a chemical burn on her thumb. Postal inspectors eventually installed surveillance cameras and identified Bond as the perpetrator.
Dow Chemical Co. (DOW) bought Rohm & Haas in 2009.
Bond pleaded guilty and was sentenced to six years in prison, while reserving her right to appeal and try to overturn the conviction. Had she been prosecuted under Pennsylvania state law for assault, she would have served no more than two years and one month, according to her lawyers.
A 1920 Supreme Court opinion suggested Congress has broad authority when implementing a treaty. The case centered on a law implementing a treaty to protect birds that migrated between the U.S. and Canada. Writing for the court, Justice Oliver Wendell Holmes said a treaty “may override” the powers normally reserved for the states.
Although Clement said in court papers that the court may need to overrule that decision, he also offered narrower options to the justices. He said today that the court could interpret the chemical-weapons law so that it applies only to “warlike conduct,” and not to Bond’s actions.
Bond’s case is before the Supreme Court for the second time. The justices ruled in 2011 that she had the legal right to challenge her conviction as unconstitutional.
The case is Bond v. United States, 12-158.