Do the Commerce and Necessary and Proper Clauses, read in connection with the treaty power, allow a statute that was enacted by Congress to enforce a treaty to serve as a valid basis for prosecuting a criminal defendant in Federal District Court?
Petitioner Carol Anne Bond was arrested in 2007 for attempts to poison a romantic rival, which culminated in a minor burn to the rival’s thumb. A federal district court sentenced Bond to six years in prison and five years of supervised release, and ordered her to pay a fine and make restitution, under the authority of the Chemical Weapons Convention Implementation Act. Congress passed that statute to implement an international arms-control agreement to prohibit chemical warfare. Bond challenged her conviction, claiming the statute’s application to her domestic conduct exceeded Congress’ limited and enumerated powers. In reviewing her challenge, the Third Circuit held that Congress’ power to implement treaties validated the statute and Bond’s conviction. The Supreme Court’s ruling in this case will affect not only how broadly federal criminal statutes apply, but also the scope of Congress’ authority to implement treaties.
Questions as Framed for the Court by the Parties
- Whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and
- whether the provisions of the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland, 252 U.S. 416 (1920).
In 2006, Carol Anne Bond discovered that her friend, Myrlinda Haynes, was pregnant from an affair with Bond’s husband. Seeking revenge, Bond acquired toxic chemicals, 10-chlorophenoxarsine and potassium dichromate, and used them repeatedly in an attempt to poison Haynes. Many of the attempts involved Haynes’ car, but chemicals were also placed on the doorknob of her home and in her mailbox. On one occasion, she sustained a chemical burn on her thumb from touching the doorknob. Local police suggested to Haynes that the substance she had touched could be cocaine, and that she ought to clean her car and door handles. Haynes next spoke with her postal carrier, and the federal postal inspectors placed surveillance cameras in and around her home. The cameras identified Bond as the attacker, and also showed her stealing Haynes’ mail.
Bond was charged with violating 18 U.S.C. § 229 (“Section 229”), which prohibits “knowing possession or use, for nonpeaceful purposes, of a chemical that can cause death, temporary incapacitation or permanent harm to humans.” Section 229 is part of a federal statute that implements a chemical weapons treaty ratified by the United States under the Chemical Weapons Convention of 1993 (“The Act”). A grand jury in the Eastern District of Pennsylvania indicted Bond on two counts of possessing and using a chemical weapon, in violation of Section 229(a)(1) and two counts of theft of mail, in violation of 18 U.S.C. § 1708. Bond moved to dismiss the chemical weapons charges on the ground that Congress exceeded its Article I authority when enacting Section 229. In support of her contention, Bond argued, “neither the Commerce Clause, nor the Necessary and Proper Clause in connection with the Treaty Power, could support [Section 229].”
The district court denied the motion, finding the statute valid. Bond entered a conditional guilty plea to all of the counts of the indictment, reserving her right to challenge the denial of the motion to dismiss on appeal. Upon conviction, Bond appealed to the Third Circuit. The court of appeals affirmed the lower court’s decision, and the Supreme Court of the United States granted certiorari to address the limited question whether an individual indicted for violating a federal statute has standing to challenge its validity on the grounds that, in enacting the statute, Congress exceeded its powers under the Constitution. The Supreme Court reversed and remanded, holding that in an appropriate case, an individual litigant may have standing to challenge a law on the ground that it contravenes principles underlying federalism.
On remand, the Third Circuit affirmed Bond’s conviction. , The court found that Bond’s conduct fell within the statutory language, and that she was thus properly found guilty. It rejected Bond’s constitutional objection to her conviction, emphasizing that the case did not present the question “whether an arguably invalid treaty has led to legislation encroaching on matters traditionally left to the police powers of the state.” Following from its conclusion that the Act is constitutional, the court declined to rule that the statute’s application to Bond violated the constitutional balance of power between the federal government and the states. Bond again petitioned for certiorari, which the Supreme Court granted on January 18, 2013.
This case presents the Supreme Court with the opportunity to consider the extent to which Congress may expand its domestic legislative powers through a treaty. The United States maintains that Congress had authority under the Commerce Clause to enact such a statute. Bond claims that the statute is unconstitutional and that affirming the Third Circuit would grant Congress an unconstitutional police power. The Supreme Court’s resolution of the case implicates a vigorous debate over the balance of federal and state powers, and the relationship between treaties among foreign nations and domestic law.
THE EFFECTS OF CONGRESSIONAL TREATIES ON INDIVIDUALS
The Cato Institute (“Cato”) and others, writing as amici curiae, argue that limiting Congressional power in this case is necessary to avoid a dangerous precedent. For example, the amici urge the Court to consider the language in Holland, "[i]f the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” The amici argue that this language may be interpreted to allow Congress to exceed its constitutionally enumerated powers when implementing a treaty. The amici worry that thiswould allow Congress to expand its legislative powers beyond those enumerated in the Constitution, and that in fact the legislative power might extend to all subjects that may be addressed by treaty. Cato, in particular, pursuant to its dedication to promoting individual liberty, free markets, and limited government, is concerned by such a possibility. To this end, the amici note that the Court explained in the previous Bond case that federalism is meant to protect individuals from arbitrary exercises of government power.
Respondent and three law professors argue that the Court should decline Cato’s request to overrule Holland. They contend that, contrary to Cato’s argument, Holland’sholding was “deeply rooted in history and precedent.” Further, they maintain that Bond and Cato ignore the Necessary and Proper clause, which is designed to enable Congress “to enact laws in effectuation of . . . enumerated powers that are not within its powers in isolation,” Further, amici maintain that, under Holland, so long as a statute carefully tracks a treaty that the United States committed itself to, it shall not be struck down as outside the scope of Congressional authority. Accordingly, because Section 229 carefully tracks the language of the treaty prohibiting the use of chemical weapons, the statute under which Bond was convicted cannot be outside Congressional authority, even if Congress lacked the authority to enact a law without the presence of the treaty.
DISPUTES CONCERNING FEDERALISM
Cato et al. argue that the Third Circuit acknowledged the need for clarification from the Supreme Court on the proper scope and interpretation of the Holland ruling. In particular, these amici urge the Supreme Court to clarify the balance of power between the federal government and the states. Also in support of Bond, the American Center for Law and Justice (“ACLJ”) claims that Bond’s actions should be punished under state and not federal law. The ACLJ warns that, if the decision below is affirmed, the United States could enter into treaties, then Congress could enact statutes to enforce the treaties, that require, forbid, or regulate matters properly left to state law. The ACLJ’s primary concern relates to “an unlimited Treaty Power [that] would run roughshod over . . . the constitutional balance between the state and federal governments (federalism).”
In support of Respondent, the Yale Law School Center for Global Legal Challenges (“Yale”) argues that the Framers of the Constitution were mindful of the possibility for abuse of the treaty power, and built in checks and safeguards to adequately protect federalism. First, Yale reminds the Court that the Framers gave the power to ratify treaties to the Senate because the Senate, where all states are equally represented, is “uniquely suited to defend the interests of the [s]tates.” Next, Yale contends that, because no Article II treaty exists in the first place without the consent of a foreign nation, a built-in diplomatic check underpins all treaties entered into, and that “[s]uggestions to the contrary lack any empirical support . . . .” Finally, Yale contends that at times when structural, political, and diplomatic checks seem to fail, the courts occasionally intervene “to protect individual rights.” Yale thus maintains that the Framers intended to grant Congress the power to make laws such as the one at issue in this case, and that historically there is a de minimis importance of Court intervention in situations such as the one at hand.
The Supreme Court will decide not only whether Section 229 applies to ordinary poisoning cases, but also whether the Constitution’s limits on federal authority constrain Congress’ ability to implement treaties by enacting legislation. The Third Circuit dismissed Bond’s constitutional challenge to Section 229, relying on language in Missouri v. Holland that seemingly empowered Congress to pass statutes in furtherance of treaties, despite federalism concerns.
In Holland, the Supreme Court appeared to claim that the validity of a treaty entails the validity of its implementing statute, as a necessary and proper means to execute Congress’ Treaty Power. The Constitution requires only that the legislation be rationally related to the implementation of the treaty. The United States argues that under Holland, Section 229 is valid as within the federal government’s authority to implement its treaty obligations. Thus, according to the United States, Bond’s conviction under Section 229 is valid too.
Bond objects, claiming that the Constitution precludes Congress from exercising a general police power. Accordingly, under Bond’s argument, any reading of Holland that fashions such a power conflicts with core constitutional principles. The United States argues that Congress’ power to regulate interstate commerce validates the Act. Independently, the United States maintains that Congress’ Treaty Power allows the federal government to legislate on otherwise local affairs.
The Supreme Court may avoid this difficult constitutional dilemma by construing Section 229 not to apply to Bond’s conduct. This narrow construction, in Bond’s view, comports with the goal of the Convention, which addressed warlike conduct, not domestic disputes. The Third Circuit conceded that it is questionable whether Congress envisioned Section 229 applying to conduct such as Bond’s. Nevertheless, the United States insists that the language of Section 229 covers Bond’s crime.
DOES SECTION 229 APPLY TO DOMESTIC CONDUCT?
Bond argues that the Supreme Court must construe statutes to avoid constitutional problems, unless such readings are plainly contrary to Congress’ intent. Bond claims that to apply Section 229 to her conduct would disrupt the balance between federal and state criminal jurisdiction, raising constitutional concerns. To avoid these problems, Bond offers a narrower construction, under which Section 229 would not reach a domestic poisoning case. The United States counters that Bond’s narrow construction conflicts with Section 229’s plain meaning.
Bond argues that Congress intended Section 229 to criminalize actions that, if undertaken by nation-states, would violate the Convention. When undertaken by individuals, according to Bond, these actions would constitute terrorism. Bond contends that Section 229’s statutory history reinforces its connection with counter-terrorism.
The United States counters that the Convention was aimed to end the use of chemical weapons in any circumstance. Although terrorism was an important concern, the United States argues that the Convention and Section 229 extended to all misuses of chemicals. The statute’s broad scope, the United States contends, furthers the non-proliferation and free-trade goals of the Convention.
Critically, Section 229 contains an exemption for chemicals used for peaceful purposes. Bond claims that the best way to make sense of Section 229 is to limit its scope to warlike conduct, like terrorism. Otherwise, Bond cautions, Section 229 would reach all manner of domestic crimes that have nothing to do with the Convention’s goal of chemical disarmament. According to Bond, the Supreme Court should construe “peaceful purposes” to refer to non-warlike activities. Because a domestic poisoning is not warlike in the way a nation-state might behave, Bond argues that her purely domestic conduct should fall under the peaceful purpose exemption.
The United States responds that the Convention prohibits actions beyond the scope of war, such as targeted assassinations. According to the United States, “peaceful purpose” refers only to non-malicious and socially beneficial uses—like research and agriculture, and not like poisoning a romantic rival. This commonsense distinction, in the United States’ view, supports the prohibition extending to Bond’s conduct.
DID CONGRESS’ POWER TO REGULATE COMMERCE AUTHORIZE SECTION 229?
The Tenth Amendment reserves for the states the powers not delegated to the federal government. Bond argues that the Constitution denies Congress a general police power. Criminal law, according to Bond, is primarily the interest of the individual states, unless the matter implicates national or international concerns. Bond claims that the Supreme Court has never accepted that Congress has the authority to regulate crimes without a nexus to a federal matter. Accordingly, Bond contends that federal attempts to criminalize broadly any malicious use of chemicals conflict with the Constitution’s federal structure.
The United States counters that there exists a lucrative interstate market for chemicals, the regulation of which requires the prohibition of their misuse. Previously, the Supreme Court has held that Congress’ power to regulate interstate commerce may reach noncommercial actions that fit within a larger regulatory scheme. Accordingly, the local nature of an action does not necessarily shield it from Congress’ reach. The United States insists that to exempt Bond’s conduct from Congress’ reach would undermine Congress’ ability to regulate chemical commerce. Thus, in the United States’ view, Congress had the authority to prohibit conduct such as Bond’s.
Bond replies that Congress passed Section 229 to regulate the use of chemicals, not to regulate their effect on interstate commerce. According to Bond, Section 229 criminalizes noneconomic activities that are beyond the purview of commercial regulation. Additionally, Bond claims that the United States waived its ability to defend Section 229 on Commerce Clause grounds by affirmatively abandoning such a defense in prior proceedings.
The United States maintains that the Supreme Court should determine for itself what constitutional power authorizes Section 229. According to the United States, the government’s failure to invoke previously the Commerce Clause should not preclude its use now.
DID CONGRESS’ POWER TO IMPLEMENT TREATIES AUTHORIZE SECTION 229?
The United States asserts that Congress’ Treaty Power provides an independent justification for Section 229. That authority, in the United States’ view, is broad in order to empower the federal government to carry out its international obligations. Relying on Holland, the United States insists that Section 229 is valid as a necessary and proper means to implement the Convention. The United States distinguishes between the constitutional scope of treaties, which is limited by express constitutional prohibitions, and the subject-matter scope of treaties, which extends to all foreign concerns. According to the United States, Bond’s conduct fits within the global regulatory scheme contemplated by the Convention and Section 229.
Bond counters that a treaty, even if valid, cannot grant Congress authority it would not have otherwise. To recognize such broad treaty power, Bond argues, would permit a circumvention of nearly every federal limitation. According to Bond, Holland only validates treaty-implementing statutes to the extent that they involve matters of national or international importance. Thus, Bond argues that Congress’ Treaty Power cannot reach conduct, like Bond’s, that has no nexus to a federal concern. If Holland cannot be reconciled with that principle of federal restraint, Bond urges the Supreme Court to overrule Holland.
The United States argues that stare decisis cautions against overruling Holland. See The scheme of treaty power under Holland, in the United States’ view, sufficiently protects principles of federalism, whereas Bond’s preferred method would have courts review the validity of treaty implementation on an unworkable case-by-case basis.
Bond maintains that decisions incompatible with the Constitution must be overruled. According to Bond, Congress can enact only what is necessary and proper within its enumerated powers. In Bond’s view, this places a structural restraint on the scope of Congress’ treaty-implementing power. Bond asserts that this structural restraint is more important than efficiency.
This case presents the Supreme Court with an unusual combination of international treaties and domestic crime. In this case the Court will determine whether the Commerce and Necessary and Proper Clauses, in light of the treaty power, and its ruling in Missouri v. Holland allow the government to prosecute a criminal defendant in federal district court based on a statute enacted to enforce a treaty signed by Congress. This case will determine the proper scope of Congress’ legislative authority resulting from a treaty signed in a modern context. Further, it will define the proper link between legislation aimed at curtailing international warfare and a domestic dispute involving a love triangle.