Argument preview: A domestic dispute, gone global
on Feb 21, 2011 at 4:44 pm
At 10 a.m. Tuesday, the Supreme Court will hear one hour of oral argument on Bond v. United States (09-1227), a rather bizarre case of a domestic dispute that turned criminal under an international treaty against the spread of chemical weapons. The argument will be divided three ways, with each counsel having 20 minutes. Arguing for Carol Anne Bond, convicted in the case, will be former U.S. Solicitor General Paul D. Clement, now with King & Spalding in Washington. For the U.S. government, in support of Bond’s right to sue, will be Deputy Solicitor General Michael R. Dreeben. Appointed by the Court to defend the lower court ruling, when the Justice Department would not, will be Stephen R. McAllister, former University of Kansas law dean now in private practice in Lawrence and Topeka, Kan. It appears that all nine Justices will take part in the hearing.
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Background
Carol Anne Bond of Lansdale, Pa., had no idea, when she allegedly set out to get revenge against her closest friend, Myrlinda Haynes, who had become pregnant in a liaison with Bond’s husband, Clifford, that she would be accused of violating a global treaty against the spread of chemical weapons. Her crime — trying to poison Haynes — was, at most, a violation of state or local law, she would claim. But federal prosecutors thought differently, and accused her of violating a 1998 law that Congress passed to carry out U.S. obligations under the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction.
The U.S. Senate had ratified that treaty in 1993, thus committing the U.S. government to “never under any circumstances” use chemical weapons, develop them, or transfer them to anyone else. Each nation signing the treaty was obliged to pass a homefront law to bar any activity that would violate that obligation, and Congress did so five years later. Under 18 U.S.C. 229(a), it is a crime for anyone knowingly to develop, produce, acquire, transfer, receive, stockpile, own, possess, use, or threaten to use any chemical weapon. Such a weapon is defined as a toxic chemical and its precursors, except when the chemical is to be used for an authorized purpose. A toxic chemical is one that can cause death, temporary incapacitation, or permanent harm to humans or animals.
Bond, a microbiologist who worked as a chemical engineer for the manufacturing company, Rohm & Haas, allegedly obtained toxic chemicals from the company’s storage and by a purchase over the Internet. She chose a mixture, 10-chloro10H-phenoxaraine with potassium dichromate, that could cause harm to humans, even through minimal contact. She began applying the chemical to the doorknob at Haynes’ home in Norristown, to the handles of her car doors, and to her mailbox. Prosecutors said she made the attempt 24 times over several months in 2006 and 2007. Haynes noticed the chemicals, and usually managed to avoid them. Once, however, she sustained a burn on her thumb.
After getting no satisfaction from local police, Haynes complained to the U.S. Postal Service. Postal officers then began an investigation, and set up surveillance cameras around the Haynes home. At one point, the prosecution said, the cameras photographed Bond opening Haynes’ mailbox, taking a business envelope from it, and putting some substance on it. The officers tested chemicals that had been placed on Haynes’ car muffler, and traced the materials to Rohm & Haas. Bond was arrested, and her home and car were searched, turning up evidence of the crime. She was then charged by a grand jury with two counts of possessing and using a chemical weapon, and with two counts of mail theft.
Her defense lawyers sought to block use of the evidence and to have the judge dismiss the chemical weapons charges, arguing that the federal law behind those charges was unconstitutional because it violated the Tenth Amendment by intruding into areas of state control — that is, domestic violence and associated crimes. The judge refused to throw out the charges. Willing to accept responsibility for what she had done, while insisting she had not intended to kill Haynes, Bond pleaded guilty, reserving the right to appeal on the Tenth Amendment challenge and other issues.  She was sentenced to six years in prison, five years of supervised released, a $2,000 fine, and $9, 902.79 in restitution. Her lawyers would later argue that, if she had been convicted under state law of aggravated assault, she likely would have been sentenced to no more than two years and one month.
The Constitution’s Tenth Amendment, adopted in 1791 — as part of the first Bill of Rights — to protect states’ rights, provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.” Relying upon that Amendment, Bond’s lawyers appealed to the Third Circuit Court, based in Philadelphia. That Court said the case  raised important questions of constitutional law, such as what constitutional authority Congress must cite when it passes a law to implement a treaty, and how far such a law may reach into an area over which states have primary enforcement power.  The federal government, defending the use of the 1998 law against Carol Bond, argued that Congress had the authority under the Constitution’s Necessary and Proper Clause to pass a law to enforce Congress’s power to approve treaties.
But, the Circuit Court said, it could not weigh in on those important issues unless it was first convinced that Bond had a right to challenge the chemical weapons law based on a claim that it violated the Tenth Amendment, and thus was beyond Congress’s legislative authority.  That issue had not arisen in the arguments of either side in the Circuit Court, but the Circuit Court noted it had to be faced before the case could proceed. It had ordered extra briefing on the issue after the case had been argued.
Relying upon a Supreme Court decision in 1939, Tennessee Electric Power Co. v. Tennessee Valley Authority, the Circuit Court ruled that Bond could not raise her Tenth Amendment claim; in other words, she lacked “standing” under Article III.  The TVA decision, the Circuit Court concluded, had ruled that private parties could not challenge a federal law under the Tenth Amendment, when a state or its officers had not come to court to make such a challenge. Although the Circuit Court noted that federal appeals courts had split on the issue since 1939, it sided with those that had interpreted the TVA decision to bar private parties to sue to protect state sovereignty when state officials had not sued. That ruling, the Circuit Court said, was still binding so, as a lower court, it had to follow it.
“Bond,” the Circuit Court concluded, “fell within the ambit of the federal chemical weapons statute by strategically employing toxic chemicals with the intent to harm Haynes. As a private party acting independently of a state, she lacks standing to challenge the constitutionality of this statute on the basis of the Tenth Amendment.” It also rejected other challengers her lawyers had raised, and upheld her conviction and sentence.
Petition for Certiorari
Carol Bond’s lawyers filed her case in the Supreme Court last April — Bond v. United States (09-1227). It raised the single question of her “standing” to challenge her conviction with the argument that 18 U.S.C. 229(a) was unconstitutional as applied to her, because Congress had not passed the law using any of its enumerated powers, and therefore had violated the Tenth Amendment.  What she was accused of doing against Myrlinda Haynes, the petition argued, was merely a part of a domestic dispute. “Domestic disputes resulting from marital infidelities and culminating in a thumb burn,” she contended, “are appropriately handled by local law enforcement authorities.”  Her crimes, she conceded, may have violated several state laws.
Arguing that an assistant federal prosecutor had sought charges against her under “a novel theory,” Bond’s petition said that her “assault against her husband’s paramour did not involve stockpiling chemical weapons, engaging in chemical warfare, or undertaking any of the activities prohibited to state signatories under the Chemical Weapons Convention.”
The Third Circuit’s ruling that she could not make a challenge based upon the Tenth Amendment, her lawyers asserted, “deepens a long-standing, well-recognized conflict in the courts of appeals.” And, it added, the case should be reviewed to provide “a judicial check on the improper federalizing of state and local crimes by providing much-needed guidance on the circumstances in which defendants have standing to challenge their convictions under unconstitutional federal legislation.”  Bond suggested that the Court either grant review of her “standing” claim, or perhaps summarily overturn the Third Circuit and order the lower court to rule on her constitutional challenge.
In July, the Justice Department responded. Partly switching from its position in the Third Circuit against Bond’s right to sue, the Department told the Court that it agreed that Bond had “standing” to test the constitutionality of the law against her by relying upon her Tenth Amendment claim. The Circuit Court erred, the Department said, in relying upon the Supreme Court’s decision in the TVA case.  The statement in the TVA opinion upon which the Circuit Court had relied, the Department’s brief contended, “addressed a distinct kind of Tenth Amendment claim involving unwarranted intrusions into state sovereignty and not a claim, like that here, that a statute exceeds Congress’s enumerated powers.”
The Department thus suggested a distinction between two kinds of challenges based on a Tenth Amendment argument: one, like Bond’s private citizen claim, it said, should be allowed to proceed because such a claim is based on a lack of authority in Congress to pass such a law and have it apply to a private individual; the other, unlike Bond’s, should not be allowed to go forward without a state’s involvement because that separate kind of claim is that the federal law infringes on state sovereignty by, in essence, dictating to a state how to use its sovereign powers.
The Court, the U.S. brief went on, “has repeatedly permitted private parties to press such enumerated power claims, and the court of appeals erred by not doing so here.”  It thus urged the Court to grant the petition, wipe out the Circuit Court decision, and order that court to reconsider “in light of the position of the United States asserted in this brief.”
The Court on Oct. 12 granted review of the case. A month later, in view of the partial switch in the U.S. government’s position, the Court appointed former Kansas law dean Stephen R. McAllister to provide a full defense of the Circuit Court ruling, so that the issue would be joined before the Justices. McAllister previously had clerked for Justices Clarence Thomas and Byron R. White, and for Seventh Circuit Judge Richard Posner.
Merits Briefs
Carol Bond’s brief on the merits is as much a challenge to the Justice Department’s new view as it is to the underlying error Bond’s lawyers see in the Third Circuit’s ruling against Bond’s “standing” to sue. What the Supreme Court needs to do, to clear up confusion among the lower federal courts, the brief argued, was to “inter altogether” the TVA decision, and “establish that Tenth Amendment claims of every stripe are subject to ordinary standing rules” — ordinary rules that Bond clearly satisfies, according to the brief.
“Leaving Tennessee Valley intact for one category of Tenth Amendment claims would not resolve the fundamental confusion that has plagued the lower courts,” the merits brief asserted. But, it went on, there is a more fundamental flaw in the distinction the government seeks to craft out of the TVA decision: that is, “a bifurcated legal test would generate new uncertainties by engrafting a needless threshold inquiry about the nature of the Tenth Amendment claim. The exact boundaries that divide ‘enumerated powers’ claims from ‘commandeering’ claims are far from self-evident or self-executing.”
Parsing the Supreme Court’s 1939 ruling in the TVA case, the Bond brief said it has spawned confusion because of “a final confounding sentence addressing standing.” The sentence, the brief noted, reads, in its entirety: “As we have seen there is no objection to the [TVA’s] operations by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the [Tenth] amendment.” That”puzzling sentence,” the brief said, may be merely dicta, not essential to the actual ruling in TVA, and therefore not binding on the “standing” issue.
As for Bond, her brief asserted, there is no doubt that she satisfies the traditional Article III understanding of the right to bring a lawsuit in federal court. “There should be no impediment to her challenging her conviction under a federal statute that, as applied to her, exceeds Congress’s enumerated powers. The lower court’s attempt to engraft additional standing requirements solely because she is advancing a Tenth Amendment claim cannot be squared with either the modern understanding of standing or the essential liberty protecting safeguards embodied in the Constitution.”
The Justice Department’s brief on the merits essentially tracks the new position it had taken in response to Bond’s petition: she does have “standing” to sue, but only because she had raised “an enumerated-powers claim” rather than “an interference-with-sovereignty claim that must be raised by a state.” For Bond, the chemical weapons treaty-implementing law passed by Congress operates directly to regulate her conduct, the government brief said, and she thus is fully entitled under Article III to make her Tenth Amendment claim.  That is fully consistent with the TVA decision, it argued.
While vigorously defending Bond’s right to bring the claim in the fashion the government characterizes that claim, the federal brief also provided an energetic defense of exclusive state authority to bring Tenth Amendment challenges to federal laws in order to protect the sovereignty of the states.  To allow private citizens to stand in for the state in such a situation to make an “interference-with-sovereignty” challenge, the brief contended, “could infringe the sovereignty of the affected states by permitting individual citizens, rather than state officials, to set state policy and to invoke the power of federal courts in ways that may be adverse to a state’s interests. Accordingly, only a state has standing to raise such challenges under the Tenth Amendment.”
Defending the Third Circuit’s ruling and urging the Court to affirm that decision without qualification, amicus counsel McAllister argued in his merits brief  that Bond was not really attacking the supposed lack of authority for Congress to pass the chemical weapons treaty law under Congress’s Article I “enumerated powers,” but was attacking Congress’s core authority — firmly established in law for more than 90 years — to implement treaties that the U.S. has joined. Therefore, the brief contended, Bond’s claim must be evaluated “in light of the constitutional cases for and the nature of the Treaty Power.”
The Treaty Power, McAllister asserted, is “markedly different” from the power Congress exercises when it passes laws using its enumerated powers.  The Supreme Court’s 1920 decision in Missouri v. Holland, the brief added, gives Congress authority to deal with matters that would otherwise be beyond its normal legislative authority. What Congress may do under Article I, Section 8 — its basic grant of legislative power — has “no relevance to the scope of the Treaty Power. Thus, for 90 years this Court has recognized that the Treaty Power — combined with the Necessary and Proper Clause — permits Congress to legislate on subjects that mgiht not otherwise be within its Article I, Sec. 8 authority.”
Lacking “standing” to assail her prosecution by challenging what Congress has done to implement the chemical weapons treaty, Bond’s challenge must be weighed under her claim that Congress has intruded on state sovereignty — and that, McAllister argues, is an argument that only a state or its officers can mount, as the TVA decision made clear.
The amicus counsel used a portion of the merits brief to laud the accomplishments made under the chemical weapons treaty. Noting that the only countries who have not signed onto that treaty are Angola, North Korea, Egypt, Somalia, and Syria (Burma and Israel have signed but not ratified it), McAllister said that, as of last July, the treaty “has resulted in about 60% of the declared international stockpile of chemical weapons being destroyed.”
The brief then went on to locate Bond’s conduct as a clearcut violation of the treaty, and thus of the U.S. law implementing it. Although Bond “may not be a professional terrorist and did not, for example, send toxic chemicals through the mail, her challenge to 18 U.S.C. 229, if successful, could preclude application of the statute in such situations.”
McAllister is the only amicus to file in support of the Third Circuit. Lining up with Bond, six states — represented by the Washington attorney who has mounted a successful challenge by 26 states to the new federal health care law, David B. Rivkin, Jr. — argued that states want private citizens to be able to help states protect their sovereignty from “unlawful federal intrusions.” The states themselves are free to contest those kinds of federal laws, that brief argued, but they could use the help as allies of private citizens seeking to vindicate state sovereignty as well as their own private interests. Three groups of conservative legal advocacy organizations also join in supporting Bond, and lauding the constitutional virtues of the Tenth Amendment and its safeguards for states’ rights.
Analysis
In some ways, Bond v. United States might be thought of as the opening volley in the coming constitutional skirmish over the modern Congress’s expansive use of its powers to pass laws that may be said to intrude on states’ rights — such as the new health care law  It is no surprise, therefore, that conservative legal advocacy organizations have leaped into the case to make sweeping arguments against affronts to state sovereignty. The Court thus has the option of speaking with sweeping breadth in deciding whether Carol Bond was unconstitutionally prosecuted. But the Court has been given options to speak more narrowly.
Bond and the Justice Department provided, each in their own way, a formula for deciding her case narrowly. She and the Department both contend that, facing a criminal prosecution and the loss of her liberty, she surely had the right to contend that Congress had no power to make what she did a federal crime punishable to a degree greater than if she had faced state criminal charges.  They parted, of course, on whether the Court should go beyond her right to challenge to address whether she also is in a position to defend state sovereignty as a premise for her challenge. Bond boldly called for a flat overruling of the TVA decision; the Department called for an interpretation that would leave intact the distinction it seeks to draw between two kinds of Tenth Amendment claims.
Amicus McAllister struck out in an even bolder maneuver, recommending a soaring reaffirmation of next-to-unlimited authority by Congress to pass domestic laws that criminalize violation of international treaties. Despite modern skepticism about the Missouri v. Holland precedent, the friend-of-Court unabashedly embraced it, and urged the Court to do so, too. Whatever Carol Bond might have thought about the localized nature of her attempt at hurtful revenge, she was acting, according to the amicus, on a global stage, and the Court should make an example of her to demonstrate its fealty to the good things that have happened in the effort to curb the spread of chemical warfare.
The chances seem quite strong that, for all of the temptation that might exist to rule broadly in this case, the Justices will be reaching for ways to decide it cautiously and narrowly. At a minimum, it might well be that Carol Bond wins the case, because the one voice against her — that of the appointed amicus — spoke too expansively.
