And More: I can understand someone wondering why a personal dispute of this sort should be a "treaty" concern, but quite honestly find it dubious to strike down this prosecution, especially given the law itself has "limits," contra some implications.
Carol Bond obtained particularly dangerous atypical chemicals, not ammonia or something, via interstate commerce, for the particular purpose of harming someone. It isn't even the 'domestic use,' since it was admitted by Paul Clement particular chemicals (e.g., sarin gas) might be barred even here. If the exact same chemicals were used by a terrorist, I would think it wouldn't surprise most people that it is prosecuted to advance the treaty.
Chemical weapons are dangerous enough to international well being to go a bit overboard, even if this is that, but apparently there is some chance the USSC will rule not quite like this. Well, the devil then will be in the details. I'm wary about that.
[ETA: The link above to various materials include this short amicus -- of a piece to others by him -- that is well worth a look. Marty Lederman says more about the case here, including discussing Breyer, who might be open to "lose the battle, win the war" on this issue here. But, including see Lederman's conclusion, is that really appropriate? As to Alito's crossing national borders rule, so the speak, will he apply things as strictly regarding drugs? Cf. Gonzalez v. Raich.]
The excerpt (in an opinion by Kennedy) hints that some justices thought this was a dubious use of federal crime enforcement. A domestic dispute leads to "a minor state charge" and the victim "suffered a minor burn." Justices noted the possible range of enforcement against chemical weapons, including one purchased on Amazon. Chocolate, noted Alito, can poison dogs. Household chemicals might become a federal prosecution matter if not used in the proper fashion in a cleaning run. More widely, any local matter might become a national one if the right treaty was involved. My kingdom for a "limiting principle"!
The issue here involved chemicals obtained in interstate commerce, a car was involved (another federally regulated item touching upon that) and the mails were affected (though she did not plea guilty to misuse of chemicals there). As noted here, perhaps the Commerce Clause argument is waived, but as Marty Lederman notes, that doesn't end the matter -- if the concern is appropriately national, even in the treaty context, an as applied challenge can fail. Note the woman should be out of prison now, was also charged with a separate crime, but lingering effects still continue.
The link ("back") provides various materials, including the (to me) convincing lower court ruling and the brief of the government. Various important matters are addressed there. Why was this made into a federal case? After repeated attempts to handle things locally, which included being told the powder involved might be illegal drugs, her mailbox became an issue. The local officials counseled her to call the feds and the post office got involved. The feds also turned out to be more aware of the nature of the chemicals involved, both regulated federally because of their dangerous nature. And, only one was easily obtained by the general public, contra a quip by Paul Clement (yes him again) about Amazon.
Somewhat like the ACA cases, the limiting principle concern is misplaced here. As was the case in the seminal case on treaty power, Missouri v. Holland, the claim is not that a treaty can trump everything. It cannot breach constitutional no noes, including structural principles, though on that front, the ruling did note the case might be harder. Treaties are by design national and there is no "subject matter" provisions there, that is, even things usually local (like property claims) can suitably be found in treaties. The Treaty of Paris that ended the Revolutionary War is a case in point and a central concern was to have a federal means to enforce its terms. One can probably imagine something not a treaty (e.g., not with a nation state), but the chemical weapons treaty at stake is not that.
The concern here is that a purely local domestic dispute is involved here, either not covered by the terms or not a "proper" enforcement of the treaty in question. Misuse of chemical weapons is an international concern and this involves protecting against their misuse domestically. There are limits -- “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes” and self-defensive usages (e.g. mace) are not included. But, she admitted to using the chemicals as weapons. The harm was thankfully minimal, but they are deadly chemicals, including when touched or inhaled. Her child was nearby. Carol Anne Bond was a microbiologist, just the sort of person the feds should have special concern about here. The locals misconstrued the situation.
The quote above from the government's brief is on point -- it is improper and bordering frivolous to have the courts strike down this application of the law in question. Some narrow definition of "peaceful" is possible, but is far from necessary to "limit" federal power here. The statute is by its own terms limited. The concern, as with ACA, is that it is not limited enough and this is translated into "no limits," mixed with an opposition to the overall merits of the policy as a whole. It is far from clear that even as a matter of discretion that this prosecution was misguided.
There are likely specific applications of treaties that are problematic, including those that deal with matters that should be left to the states. Even there, unless some individual right or other express constitutional demand is involved, this should likely be a political question except perhaps in a crystal clear case. To quote Holland,* "a national interest of very nearly the first magnitude is involved" (chemical weapons) here. Migratory birds might be more national than misuse of chemicals, but necessary and proper here but "national action" is significantly essential here all the same. The facts of the case underline that leaving it to local action here was and is a dubious proposition. If nothing else, the legitimate discretion is there and Bond should therefore lose.
Wider specters however complicate things.
---
* Justice Holmes had to deal with a more restrictive era when it came to federal power, but still obtained a 7-2 vote. He noted:
Carol Bond obtained particularly dangerous atypical chemicals, not ammonia or something, via interstate commerce, for the particular purpose of harming someone. It isn't even the 'domestic use,' since it was admitted by Paul Clement particular chemicals (e.g., sarin gas) might be barred even here. If the exact same chemicals were used by a terrorist, I would think it wouldn't surprise most people that it is prosecuted to advance the treaty.
Chemical weapons are dangerous enough to international well being to go a bit overboard, even if this is that, but apparently there is some chance the USSC will rule not quite like this. Well, the devil then will be in the details. I'm wary about that.
This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After dis-covering that her close friend was pregnant and that the father was Bond’s husband, Bond sought revenge. Bond subjected the woman to a campaign of harassing telephone calls and letters, acts that resulted in a criminal conviction on a minor state charge. Bond persisted in her hostile acts, placing caustic substances on objects the woman was likely to touch, including her mailbox, car door handle, and front doorknob. Bond’s victim suffered a minor burn on her hand and contacted federal investigators, who identified Bond as the perpetrator.Pretty obscure dicta in an old case was applied to block a claim, but after the feds agreed the woman had standing, the USSC unanimously agreed -- given the very judicial power to decide was involved, the government admitting error on the point was not enough. The matter is back to cover the merits, specifically an as applied challenge to the treaty enforcement mechanism at stake. Orals was today and justices were concerned about limits, which popped up a bit the first time around too.
[ETA: The link above to various materials include this short amicus -- of a piece to others by him -- that is well worth a look. Marty Lederman says more about the case here, including discussing Breyer, who might be open to "lose the battle, win the war" on this issue here. But, including see Lederman's conclusion, is that really appropriate? As to Alito's crossing national borders rule, so the speak, will he apply things as strictly regarding drugs? Cf. Gonzalez v. Raich.]
The excerpt (in an opinion by Kennedy) hints that some justices thought this was a dubious use of federal crime enforcement. A domestic dispute leads to "a minor state charge" and the victim "suffered a minor burn." Justices noted the possible range of enforcement against chemical weapons, including one purchased on Amazon. Chocolate, noted Alito, can poison dogs. Household chemicals might become a federal prosecution matter if not used in the proper fashion in a cleaning run. More widely, any local matter might become a national one if the right treaty was involved. My kingdom for a "limiting principle"!
The issue here involved chemicals obtained in interstate commerce, a car was involved (another federally regulated item touching upon that) and the mails were affected (though she did not plea guilty to misuse of chemicals there). As noted here, perhaps the Commerce Clause argument is waived, but as Marty Lederman notes, that doesn't end the matter -- if the concern is appropriately national, even in the treaty context, an as applied challenge can fail. Note the woman should be out of prison now, was also charged with a separate crime, but lingering effects still continue.
The link ("back") provides various materials, including the (to me) convincing lower court ruling and the brief of the government. Various important matters are addressed there. Why was this made into a federal case? After repeated attempts to handle things locally, which included being told the powder involved might be illegal drugs, her mailbox became an issue. The local officials counseled her to call the feds and the post office got involved. The feds also turned out to be more aware of the nature of the chemicals involved, both regulated federally because of their dangerous nature. And, only one was easily obtained by the general public, contra a quip by Paul Clement (yes him again) about Amazon.
Somewhat like the ACA cases, the limiting principle concern is misplaced here. As was the case in the seminal case on treaty power, Missouri v. Holland, the claim is not that a treaty can trump everything. It cannot breach constitutional no noes, including structural principles, though on that front, the ruling did note the case might be harder. Treaties are by design national and there is no "subject matter" provisions there, that is, even things usually local (like property claims) can suitably be found in treaties. The Treaty of Paris that ended the Revolutionary War is a case in point and a central concern was to have a federal means to enforce its terms. One can probably imagine something not a treaty (e.g., not with a nation state), but the chemical weapons treaty at stake is not that.
Contrary to petitioner’s contention, her repeated use of highly toxic specialty chemicals to harm Myrlinda Haynes was not for a “peaceful purpose.” That commonsense proposition is confirmed by the statutory definition of the term, which is limited to socially productive, non-malicious activities.
The concern here is that a purely local domestic dispute is involved here, either not covered by the terms or not a "proper" enforcement of the treaty in question. Misuse of chemical weapons is an international concern and this involves protecting against their misuse domestically. There are limits -- “[i]ndustrial, agricultural, research, medical, pharmaceutical or other peaceful purposes” and self-defensive usages (e.g. mace) are not included. But, she admitted to using the chemicals as weapons. The harm was thankfully minimal, but they are deadly chemicals, including when touched or inhaled. Her child was nearby. Carol Anne Bond was a microbiologist, just the sort of person the feds should have special concern about here. The locals misconstrued the situation.
The quote above from the government's brief is on point -- it is improper and bordering frivolous to have the courts strike down this application of the law in question. Some narrow definition of "peaceful" is possible, but is far from necessary to "limit" federal power here. The statute is by its own terms limited. The concern, as with ACA, is that it is not limited enough and this is translated into "no limits," mixed with an opposition to the overall merits of the policy as a whole. It is far from clear that even as a matter of discretion that this prosecution was misguided.
There are likely specific applications of treaties that are problematic, including those that deal with matters that should be left to the states. Even there, unless some individual right or other express constitutional demand is involved, this should likely be a political question except perhaps in a crystal clear case. To quote Holland,* "a national interest of very nearly the first magnitude is involved" (chemical weapons) here. Migratory birds might be more national than misuse of chemicals, but necessary and proper here but "national action" is significantly essential here all the same. The facts of the case underline that leaving it to local action here was and is a dubious proposition. If nothing else, the legitimate discretion is there and Bond should therefore lose.
Wider specters however complicate things.
---
* Justice Holmes had to deal with a more restrictive era when it came to federal power, but still obtained a 7-2 vote. He noted:
The treaty in question does not contravene any prohibitory words to be found in the Constitution. The only question is whether [p434] it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.So is the case here -- the "radiation" is required when the amendment involved leaves those powers not delegated to the U.S. (e.g., the Treaty Power, power to regulate the rules of nations and anything necessary and proper for the same) to the states or people minus those not otherwise prohibited to the same. Is there some "activity" rule for treaties?
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