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Bond v. United States, a Supreme Court
case due for decision this spring, has it all: a jilted lover, an impregnated
best friend, a mailbox covered in bright orange powder, and a global
disarmament treaty. No doubt, the soap-opera-esque facts of Bond are bizarre. But what really
makes Bond’s story unusual is that the
whole premise of the case – which could transform U.S. federalism and foreign
relations – apparently came as a shock to nearly everyone, including those most
responsible for the challenged law.
The
root of the case is the 1993 Chemical Weapons Convention (CWC), a now-190-member treaty aimed at
stopping the development, stockpiling, and deployment of chemical weapons of
mass destruction. (The CWC recently made
other news when Syria was pressured into joining last October.) The United States ratified it in 1997, and
Congress enacted the CWC Implementation Act a year later. Among other things, state
parties to the CWC are required to prohibit the development and use of chemical
weapons, a term defined quite broadly. By largely cutting-and-pasting from the
CWC’s pertinent provisions, the CWC Implementation Act does just that.
In
fact, it may have done it too
well.
In 2007, a 42-year-old Lansdale,
Pennsylvania, woman named Carol Anne Bond rubbed two abrasive chemicals (one
which she took from her workplace, the other which she ordered on Amazon.com,
available here)
on the mailbox and car door of her neighbor, Myrlinda Haynes. Bond had recently learned that Haynes was
pregnant — and that Bond’s husband was the father. On one occasion, some chemicals rubbed off on
Haynes’s hand. Before she could wash it,
she suffered a minor thumb burn. When
Haynes told the police, local officials declined to pursue it. The whole incident might have ended there,
but because a mailbox was involved, eventually so was the U.S. Postal
Service. To the shock of most everyone
but the prosecutors involved, the U.S. Attorney’s Office in Philadelphia
charged Bond under the CWC Implementation Act.
Under the law, Bond faced a possible sentence of life in prison.
The
question before the Court is whether the Necessary and Proper Clause of the U.S.
Constitution and Missouri v. Holland allow
treaty-implementing acts to be applied this way, that is, to penalize “local”
conduct quintessentially within the states’ police powers. The parties, amici, and commentators generally
agree that the case could meaningfully impact federalism doctrine and/or U.S.
foreign relations. Petitioner Bond and other supporters of a limited federal lawmaking
role argue
that allowing this result would allow the federal government to use treaties as
a pretext to regulate in areas of traditional state responsibility. Bond and amici
imply this power could be used to bypass traditional federalism safeguards,
allowing an alliance of the Senate, the President, and one foreign nation to,
for instance, force states to abolish the death penalty, or require nationwide same-sex
marriage.
Critics,
such as University of Chicago law professor Eric Posner, mock that notion, saying that the states’ Senate representation has proven ample
protection from treaty-based threats to federalism. The government
and several amici argue that the Constitution, international law, and/or
foreign relations considerations demand that the government have the authority
to prosecute the likes of Ms. Bond. The
government insists that if local acts like Bond’s were outside Congress’s reach
to criminalize, it “would hamstring U.S. treaty negotiators” and “undermine
global confidence in the United States as a reliable treaty partner,”
jeopardizing U.S. foreign policy and national security.
Typically,
when bills of questionable constitutionality are before Congress, it’s understood
that the law is a federal case waiting to happen. Congress relies on executive officials and its
own legal staff to anticipate the courts’ view of the statute, an exercise
which often helps to shape the final legislative product. But with Bond, the serious concerns mentioned
above apparently concerned no one until Bond’s attorneys raised them before a
Pennsylvania federal district court in 2007. Despite the glut of lawyers and legal
expertise in Congress, the State Department, and the Justice Department, none apparently
saw it coming. During the Implementation
Act’s congressional hearings and debate, there was no hint of the Act’s
possible application to minor, garden-variety assaults – nor any concerns
expressed about federalism – by the numerous executive officials, members of
Congress, and legal experts who weighed in.
What
explains this oversight? As a potential threat
to federalism, it turns out the CWC is sort of a wolf in sheep’s clothing. Congress is usually attentive to the
federalism implications of multi-lateral treaties; consider the resistance faced
by agreements like the International Convention on Civil and Political Rights, the
WTO Agreement on Government Procurement, and the Convention on the Rights of
the Child. Some of those treaties require state parties to regulate conduct within
the traditional purview of U.S. states, e.g., child neglect, criminal
punishment, and state-government procurement.
The CWC also requires its members to prohibit certain conduct by their
citizens. But that conduct is qualitatively
different, because it involves quintessential national and international
concerns: developing, stockpiling, and using chemical weapons. It’s easy to see why no one foresaw the Chemical
Weapons Convention’s applying to a thumb burn spawned by a Lansdale neighbors’
love triangle.
If
this case — with its important implications for foreign affairs and federalism
– has taken its creators by surprise, why does its unusual origin matter to
anyone (besides Carol Bond)? It matters because
it shows how translating international law into domestic law can produce unforeseen,
usually unintended consequences.
Here, the
consequence, in the Third Circuit’s words, is a law that “turns each kitchen cupboard and
cleaning cabinet in America into a potential chemical weapons cache.” Another consequence is a criminal regime that
punishes routine, misdemeanor batterers like terrorists and illegal arms
dealers. Given the expanding scope of issues being addressed with multilateral
treaties, such unintended applications of international-turned-domestic law could
one day become commonplace.
That’s
not an inevitable result. Regardless of
the Implementation Act’s constitutionality, cutting and pasting from the CWC wasn’t
Congress’s only option to uphold the country’s international commitments. Had State Department officials or members of Congress
anticipated prosecutors’ using the CWC on people like Carol Bond, Congress might
have explored other ways to fulfill the United States’ obligation to prohibit
non-peaceful chemical uses. For example,
Congress could have relied on existing U.S. state criminal regimes to cover uses
of chemicals (as in Bond) that have
nothing to do with warfare, disarmament, or weapons of mass destruction, the explicit concerns of the CWC. Or it might have created a multi-tiered
sentencing scheme, in which minor assaults were recognized and punished as
such. That it did not, and that Bond has taken so many by surprise, underscore
the challenges and pitfalls of converting international law into domestic law
in a federal system.
[*]
Kevin Cope
is a Visiting Associate Professor of Law at Georgetown. His research and
teaching interests include international institutions and the nexus of domestic
and international law.
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