U.S. v. Bond: Reexamining the Mysterious 10th Amendment

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Is smearing toxic chemicals on a mailbox "garden-variety" crime or a federal treaty violation?

When Carol Anne Bond of Lansdale, PA, put deadly poison on her best friend's mailbox, she probably didn't think she was violating an international treaty against chemical weapons. Nor did she probably imagine she'd end up in front of the U.S. Supreme Court in a case involving that most mysterious of Amendments, the Tenth.

Tuesday's oral argument in United States v. Bond will probably focus on the legally important parts of this case -- quasi-theological concepts like the nature of the Article II Treaty Power, the meaning of the Article I "Necessary and Proper" Clause, and the real meaning of the Tenth Amendment -- which from a journalistic standpoint is a shame, because the unimportant parts of the case are so amazing.

I'm pretty sure Bond wasn't thinking about these issues when she committed her crime -- or thinking about of anything, beyond perhaps proving her suitability to appear on a future episode of a daytime talk show called "Highly Educated Microbiologists Who Do Crazy Stupid Things."

Bond, like Wile E. Coyote, smeared various highly toxic chemicals on surfaces in Haynes's car and around her home, including her mailbox, 24 times.

Bond had found out that her BFF Myrlinda Haynes had given birth to a daughter by Bond's husband, Clifford. She began sending Haynes angry letters featuring defaced pictures of her, and she told her, "I'm going to make your life a living hell" and "dead people are going to visit you." Bond tried to poison Myrlinda Haynes with 10-chloro10H-phenoxarsine she'd stolen from a storage locker at the chemical company where she worked. This stuff is deadly poison; if Haynes' daughter had touched it, it would probably have killed her.

Bond, like Wile E. Coyote, smeared various highly toxic chemicals on surfaces in Haynes's car and around her home, including her mailbox, 24 times. Haynes noticed the contaminants and avoided them, except for one burn on her thumb. She also called local police, who good-heartedly suggested the powder must be cocaine. Then they suggested she keep her car cleaner. Only when she turned to the U.S. Postal Service did someone take her situation seriously. Surveillance cameras posted by USPS caught Bond in the act, and she was arrested.

An unusual case now turns stranger. Federal authorities charged Bond with a violation of 18 U.S.C. § 229, a statute implementing the 1993 Chemical Weapons Convention. She had possessed and used a chemical weapon, the government argued. She pleaded guilty in federal court and received a six-year sentence, which included an enhancement for using "special skill" in the commission of the crime.

Bond reserved the right to appeal the application of this statute to her. But the appeals court held she had no "standing" to argue that her conviction exceeded the power of the federal government. The government hadn't asked for that ruling, but the court went there on its own. At this point her story becomes entangled with issues of federal power that are a lot more important, though radically more boring, than Carol Bond's crazed campaign for vengeance.

Here's the part that lawyers can love: The issue is not whether Congress, or the federal prosecutors, actually overstepped the Tenth Amendment by applying this federal statute to what her lawyer calls, in a brief to the Court, "garden-variety infractions" like using incredibly toxic, highly regulated chemicals around the home of a mother and her two-year-old infant. It's whether Bond can even raise the issue. Ordinarily a criminal defendant has "standing" to argue any grounds that might prove her conviction was unlawful. Why wouldn't she? "Standing" at its core refers to the idea that a person must be injured by a government action. It's hard to imagine an injury more palpable than being hustled off to a federal gated community for six years.

Bond, in fact, didn't argue that her prosecution violated the Tenth Amendment. She just argued that the chemical weapons statute exceeded the power given to the federal government under the Treaty Power, Article II, § 2, clause 2. On its own, however, the Court of Appeals held that Bond's challenge actually arose under the Tenth Amendment, and that only a state had standing to challenge a federal action as violating the Amendment's provision 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."

Both Bond and the U.S. government now agree that the appeals court got the case wrong. Their only difference is on how broadly she should win. The government wants the Supreme Court to allow Tenth Amendment standing only in cases where defendants argue that the alleged federal overreaching exceeds a constitutional grant of power. Bond, and other conservative amici, wants the Court to allow litigants like Bond to challenge statutes on the grounds that they are unfair, not to them, but to their state governments.

The Tenth Amendment is a little bit like the obligatory scene in an adventure movie where the old duffer tells Nick Cage there is a treasure out there and then keels over dead. The rest of the movie is a crazed search for the Holy Grail: a power the federal government doesn't have! The only problem is that the Amendment doesn't say what that power is. So the American imagination runs riot. People have assured me confidently that the Tenth Amendment makes the war in Iraq illegal, that it guarantees their right to use marijuana or that it makes it illegal for state police to stop their cars for speeding.

If the Court allows the broader rule of standing, private parties will bring Tenth Amendment challenges to dozens of federal programs that they find inconvenient in some way. These citizens will get to assert "state's rights" even when their states don't want to assert them or even believe they have them. Conservative advocacy groups, sensing a chance to cut another hole in Congress's pesky power, have rushed in with "friend of the court" briefs urging the Court to take a meat axe to the federal power to "punish crimes against the United States." (A coalition of gun-rights groups filed a brief fairly slavering at the damage the Tenth Amendment could do to federal gun laws [PDF].)

The more broadly a judge reads the Tenth Amendment, the more likely that judge is to look askance at something like the Affordable Care Act.

Only one person before the Court argues that the Third Circuit got the case right; he was in essence drafted. When the government "confessed error" and refused to defend the judgment below, the Court reached out to Stephen McAllister, a law professor at Kansas University who clerked for Justices Byron White and Clarence Thomas, to write a special amicus brief defending the Third Circuit's decision. He did an excellent job in a thankless cause. McAllister's brief points out that this is not a "garden-variety" extension of the Commerce Clause; the statute at issue was passed in fulfillment of a treaty obligation, and is justified by the Treaty Power -- long considered broader than Congress's ordinary domestic powers -- augmented by the "necessary and proper" clause (PDF). The chemical weapons treaty requires the United States to pass criminal laws against use of these compounds by private citizens. Cutting back on Congress's power to fulfill treaties could threaten the nation's foreign relations -- and undercut a key purpose for which the Constitution was adopted.

Probably the best outcome would be for Bond to win standing on narrow grounds, get remand to a lower court, and lose on the merits. But the worst would be for the Court to announce open season on federal law by litigants armed with a sense of grievance and a copy of Tenth Amendment. There's no question that federal courts are overburdened by federal criminal statutes that duplicate state laws, often passed so members of Congress can pose as "tough on crime." But United States v. Bond is not a case where Congressmen, preening for the cameras, have stretched the Commerce Power to criminalize jay-walking or removing mattress tags.

Bond's case is hardly "garden-variety" crime, after all. Restricting chemical weapons really is a matter for the federal government, not the states. And "garden-variety" law enforcement was unwilling or unable to deal with this horrifying misuse of toxic chemicals. Only the feds took the crime seriously and caught the perpetrator.

The argument will be interesting, among other things, for oblique hints of how the Justices are thinking about the pending health-care challenge. The more broadly a judge reads the Tenth Amendment, the more likely that judge is to look askance at something like the Affordable Care Act.

If you were a bookie, you'd probably have to make Bond the odds-on favorite to win. But how she wins could make a difference in cases less bizarre but more important.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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