Woman Not Guilty of Chemical Warfare; Constitution Saved

In Bond v. U.S., six justices recognized that prosecutorial overreach is a greater threat than the Senate using conniving treaties to overturn the Court's decisions.
Eric Thayer/Reuters

The Supreme Court Monday stepped back from the abyss.

By a vote of 6-3, it refused to invent limits on the federal government’s power to make and enforce treaties.

The case was Bond v. United States. This is the second installment of the soap opera of Carol Anne Bond. Bond’s husband and her best friend conceived a child. When she found out, Bond, a trained laboratory technician, turned to the hostile use of 10-chloro-10H-phenoxarsine and potassium dichromate, both deadly poisons. She smeared them on various doorknobs and car doors at Hayes’s house, on one occasion giving Hayes’s thumb a nasty burn. She also unwisely smeared them on Hayes’s mailbox, which is by law part of the U.S. Postal System. Postal inspectors posted security cameras and caught her on video.

Federal prosecutors proclaimed this “a very serious, scary case,” because Bond had stolen four pounds of potassium dichromate from her workplace. They charged her with theft of the mail—and violation of 18 U.S.C. § 229, the Chemical Weapons Convention Implementation Act of 1998.

On Monday a six-justice majority, in an opinion by Chief Justice John Roberts, told the government it had misread the statute to “sweep in everything from the detergent under the kitchen sink to the stain remover in the laundry room,” and “make[] it a federal offense to poison goldfish.” Roberts was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. All nine justices agreed that the government had gone too far in prosecuting Bond. The majority said the indictment violated the statute; Justices Antonin Scalia, Clarence Thomas, and Samuel Alito would have held the prosecution unconstitutional.

Bond had argued that the power to “make treaties” was limited either by the Tenth Amendment or the overall doctrine of federalism. Conservative groups were eager for the Court to create new rules about what matters treaties could cover as a way to stymie contemporary treaties that concern things like environmental protection and human rights.

Making treaties is a sovereign power; an independent nation must have it. The framers of the Constitution gave that power to the president and two-thirds of the Senate. Article VI § 2 makes “treaties ... which shall be made under the authority of the United States” part of “the supreme law of the land,” explicitly trumping “any thing in the constitution or laws of any state to the contrary notwithstanding.” It nowhere hints that federal courts must approve these treaties, nor that states can block them. 

There’s an established rule of construction called the avoidance doctrine: If there are two ways of reading a statute, and one way would cause a serious constitutional problem, a court should read it the other way. That’s what the majority in Bond did. It concluded that Congress did not intend its statute to extend to local disputes like the Bond-Hayes feud. 

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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