Revenge Poisoning Case brings up Separation of Powers Question

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by: Justin Norris, Staff Writer


Carol Anne Bond, a microbiologist from Lansdale, Pennsylvania, was excited when she learned that her friend, Myrlinda Haynes, was pregnant.  That is, until she discovered that Haynes slept with her husband, Clifford Bond, and was having his child. (a)

Her pleasure turned to revenge.  Bond stole quantities of 10-chloro10H-phenoxarsine from her employer and ordered a vial of potassium dichromate on the internet.  Soon thereafter, Bond tried to poison Myrlinda Haynes with the chemicals at least 24 times over the course of several months.  She would often apply chemicals on Haynes’ doorknob, car door handles, and mailbox. On most occasions, the chemicals were detectible and Haynes avoided harm.  However, there was one instance where Haynes sustained a chemical burn on her thumb.

After Haynes complained to the police and U.S. Post Office, U.S. Postal Inspectors revealed Bond’s plot and served an arrest warrant.  A grand jury charged Bond with violating the Chemical Weapons Convention of 1993 and 18 U.S.C. § 229, a criminal statute known as the Chemical Weapons Convention Implementation Act. (b)

On appeal to the Third Circuit Court of Appeals, Bond challenged the constitutionality of the criminal statute.  She asserted the statute lacked constitutional authority under the Tenth Amendment. She argued that a Congressional statute prohibiting the malicious use of chemicals encroached on traditional state powers.  However, the Third Circuit did not even reach the merits of Bond’s argument. It, instead, held that Bond did not have prudential standing, since only states could bring such a challenge. The U.S. Supreme Court disagreed and remanded the case to the Third Circuit. (c)

Upon remand to the Third Circuit, the Court of Appeals adjudicated the question as to whether Congress possessed the requisite constitutional authority to implement treaties through legislation.  The Third Circuit ultimately ruled that the enactment of the Chemical Weapons Convention Implementation Act did not exceed Congress’ power under the Necessary and Proper Clause.

What is Congress’ role in Implementing Treaties?

Precedent: Missouri v. Holland

The only case to deal with Congress’ ability to implement treaties is a 1920 case. (e) In Missouri v. Holland, the Supreme Court held that Congress can, under the Necessary and Proper Clause implement treaties even though there is no enumerated power given to Congress under Article I, § 8 of the United States Constitution.  Instead, Justice Wendell Oliver Holmes reasoned that the constitutional source of power for treaties is found in Article 2, § 2 as delegated to the President and Senate and are considered the supreme law of the land under Article 6 of the U.S. Constitution.

Congress, in so many words, has a broad power to implement legislation that effectuates treaties.  However, it is not clear the scope or breadth of this power compared to other Constitutionally enumerated powers.

Constitutional Questions about Congressional Treaty Powers

There are some scholars, though, who say that Congress’ ability to implement treaties is limited.  Georgetown Law Professor, Nicholas Quinn Rosenkranz, claims that Holland should be overruled, which he addressed in a 2005 law review article.  He argues that “if a treaty commits the United States to enact some legislation, then Congress automatically obtains the power to enact that legislation, even if it would lack such power in the absence of a treaty. . . . [Therefore,] it follows from Missouri v. Holland that treaties may increase the legislative power virtually without limit.” (f)

Professor Rosenkranz primarily highlights the concern that if Congress can find no other way to legitimize its power, such as the commerce clause, taxing clause, or spending clause, then it may attempt to do so under its treaty powers.  For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison, 529 U.S. 598 (2000), because it exceeded Congress’ commerce clause power and Fourteenth Amendment enforcement power.  Rosenkranz’s view is that Congress could circumvent the Supreme Court’s decision by enacting a statute that comports with a treaty such as the International Covenant on Civil and Political Rights.

The philosophical basis of his argument is this:  the federal government is one of limited and enumerated powers and should not reach beyond those powers.  Thus, he believes that Missouri v. Holland was wrongly decided.

However, other scholars are skeptical of Rosenkranz’s claim.  They argue that the point at issue is not whether treaties expand the scope of constitutional powers given to Congress or that treaties can circumvent procedural limitations on the constitutional amendment process.  Rather, they argue, the point at issue is whether the “Necessary and Proper Clause grants Congress the power to implement valid treaties.”  This was at least the view of Law Professors David Golove, Marty Lederman, and John Mikhail in their amicus brief to the Supreme Court for the Bond case.

Golove, Lederman, and Mihail also assert that there are already limits on Congress’ power.  These limits make clear that the Supreme Court does not regard the validity of a treaty as granting the same presumption of validity to the laws that enact it.  “The legislature may not, for example, point to a valid treaty as justification for legislation grossly disproportionate to what is needed to satisfy the Nation’s obligations or the conditions that enable the United States to reap the benefits of its side of the bargain.” (g)

Yale Professor of Law, Oona Hathaway, brings up another point that is more relevant to the case at hand: whether the Tenth Amendment limits (or even precludes) Congressional authority to implement treaties.  Hathaway argues that the treaty power has been expressly reserved for the federal government and expressly denied to the states rendering the Tenth Amendment as an ineffective challenge to a treaty powers case.  It is unlikely, in Hathaway’s opinion, that Carole Bond will be able to challenge the Chemical Weapons Implementation Act under the Tenth Amendment.  (h)

Fishbowl Terrorism?

Bond is not stranded if the Supreme Court decides that the Tenth Amendment does not apply here.  The Court is also looking into whether such chemical weapons legislation was even meant to reach ordinary poisoning cases by private citizens.

Justice Alito, during oral argument, asked a question about the reach of the Chemical Weapons Convention Implementation Act (§ 229).  He asked the government if § 229 would make vinegar a chemical weapon if it was used to injure or kill a neighbor’s goldfish.  Furthering Alito’s point, Bond argued that the legislative history of § 229 reveals that it was meant to operate as an anti-terrorism statute.  The people who are meant to be prosecuted under the statute, according to Bond, are terrorists, not ordinary private citizens.  Bond continues to argue that she did not engage in warlike activities that would arouse the attention of the international community and that the application of § 229 would undermine the intention of the Chemical Weapons Convention. (i)

The government retorts that the treaty was designed as an arms control and non-proliferation treaty.  It also argues that there is no terrorism element in § 229 nor is it codified under the “Terrorism” chapter where a preceding statute was codified. Rather, it appears in the “Crimes” chapter.  One of the government’s more poignant arguments is that he present case can be decided with firmer constitutional grounding based on the Commerce Clause of the U.S. Constitution.  The United States argues that it has the power to enforce a criminal prohibition on individuals who misuse commodities and articles of commerce like chemicals under the Commerce Clause.  (j)

Whatever the case may be, oral argument showed that many of the Justices were incredulous at the government’s prosecution under § 229.  Justice Roberts, Alito, and Breyer each shared their reservations about the law’s application.  It is possible that the Supreme Court may not directly challenge Congress’ treaty power as decisively as some foresee, but will reverse the lower courts’ decision on the basis of § 229’s “misapplication.”

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