Nov. 1 (Bloomberg) -- What began as attempted revenge for marital infidelity has turned into a U.S. Supreme Court showdown over the power of the federal government.
The high court will hear arguments on Nov. 5 in the case of Carol Anne Bond, a microbiologist who tried to poison her husband’s lover -- and was prosecuted under a U.S. law enacted to implement a chemical-weapons treaty. Bond says her crime is a local one that never should have involved federal prosecutors.
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 case is hugely important because it’s about a fundamental principle of constitutional law, which is limited federal power,” said Nicholas Quinn Rosenkranz, a Georgetown University Law Center professor.
Bond, a Pennsylvania woman, is challenging a 1920 high court ruling that said Congress can use its constitutional power to implement treaties as a mechanism to regulate local conduct.
The Obama administration, backed by the chemical industry, defends the prosecution and the 1920 ruling. The administration says Bond’s argument would undermine the president’s ability to strike agreements with other countries and cut against a centuries-old understanding of the Constitution’s treaty power.
“In international affairs, the federal government has complete sovereignty and acts on behalf of all the citizens of the nation,” U.S. Solicitor General Donald Verrilli argued in court papers. “And it follows from the national government’s exclusive power to make treaties that it must have the power to ensure treaty compliance.”
Those weighty constitutional questions come to the court through a tale worthy of a soap opera.
Bond was thrilled when she learned in 2006 that her closest friend, Myrlinda Haynes, was pregnant. That excitement turned to rage when Bond discovered that her husband, Clifford Bond, was the father.
Bond, who worked for the chemical maker Rohm & Haas Co. outside Philadelphia, then stole a bottle of an arsenic-based substance from her employer. She used the Internet to order a second toxic chemical, potassium dichromate, which is commonly used in printing photographs. Dow Chemical Co. bought Rohm & Haas in 2009.
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 noticed the substances and avoided touching them, on one occasion she suffered a chemical burn on her thumb. Postal inspectors eventually installed surveillance cameras and identified Bond as the perpetrator.
Federal prosecutors then charged her 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.
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 Paul Clement, the lawyer who will be arguing on her behalf. She was released from prison last year.
Clement, who was solicitor general under President George W. Bush, said in court papers that Bond’s circumstances “are far removed from the United States’ treaty obligations or any issues of national or international importance.”
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.
Richard Pildes, a New York University law professor, said the U.S. Constitution’s framers created a broad treaty power to address what he calls the “Treaty of Paris problem.”
That 1783 accord, which ended the Revolutionary War, promised respect for the property rights of people who had been loyal to the British king. States ignored that guarantee, seizing Loyalist property and reneging on debts to British creditors. At the time, the states were bound only by the Articles of Confederation, the loose agreement that preceded the Constitution.
“This was actually one of the central problems with the Articles of Confederation,” Pildes said. “The United States could not make credible promises to other countries because the enforcement of those promises depended on whether the states did or didn’t agree.”
The 1920 Supreme Court case, Missouri v. Holland, centered on a law implementing a treaty to protect birds that migrated between the U.S. and Canada. Missouri challenged the law, arguing that a treaty can’t be used to expand Congress’s powers.
Writing for the court, Justice Oliver Wendell Holmes rejected that contention. While “the great body of private relations usually fall within the control of the state,” Holmes wrote, “a treaty may override its power.”
Bond says the court may have to overrule the Holland decision, an outcome that Rosenkranz, whose 2005 law review article sparked a drive to overturn the 93-year-old ruling, says would eliminate a constitutional anomaly.
“It’s a basic axiom of our Constitution that Congress has limited legislative power,” Rosenkranz said. “But if Missouri v. Holland is right, then there really are no limits. The president and Senate can use treaties to increase Congress’s power at will.”
The justices have at least two options should they wish to duck that constitutional question.
Clement says the court should interpret the chemical-weapons law so that it applies only to “warlike conduct,” and not to Bond’s actions.
Another possibility is one suggested by Verrilli: upholding the law and Bond’s conviction without addressing the reach of the treaty power. Verrilli contends the law also is a legitimate use of Congress’s constitutional authority over interstate commerce because it is part of a larger effort to promote the legitimate trade in toxic chemicals.
The American Chemistry Council, a Washington-based group that represents the industry, is making similar arguments in support of the law.
Given the stakes, Pildes says the justices may be happy to adopt one of those narrower options.
“It would not be surprising if they searched for some acceptable way of avoiding a final resolution of the profound question at the bottom” of the case, he said.
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