Bond vs. United States is already famous for its bizarre fact pattern in which a Chemical Weapons Treaty was invoked by the federal government to prosecute an estranged wife’s use of common household chemicals to exact revenge on a cheating husband and his girlfriend.
In short, Carol Anne Bond was federally prosecuted for causing minor burns to the fingers of her husband’s girlfriend after spreading around her home a caustic chemical used in developing photographs. According to the federal government, this act of intrastate domestic violence violated the letter of the law passed by Congress to implement the Chemical Weapons Treaty.
In an earlier phase of the Bond litigation, Justice Samuel Alito asked, “Suppose that the petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend’s goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn’t it?” The apparently absurd affirmative answer to this question led to Ms. Bond winning the first round, when the Supreme Court unanimously reinstated her 10th Amendment defense after the lower court rejected it on procedural grounds. Her case then returned to the lower courts, only to result in the 3rd Circuit embracing absurdity and rejecting her defense on the merits. According to the 3rd Circuit, Congress was fully within its power to turn “each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.”
It is now well-known what happened next; the court accepted certiorari of Ms. Bond’s appeal — and the Goldwater Institute and many other public interest groups filed amicus briefs in support of her position. Fewer know that just as amicus briefings went to print in Bond, the Guardian reported that the State Department shut down a website that distributed blueprints for 3-D printing a plastic gun, citing international agreements. A coincidence, no doubt, but the two cases are intimately connected from a constitutional perspective. In both instances, promises made to foreign nations have been invoked to override our constitutional guarantees. In the case of the blueprint gag order, those promises resulted in censorship. In the case of Bond, a treaty could erase what little remains of the jurisdictional line between our state and federal governments.
Sure, there is a difference between treaties and international agreements, but both cases highlight that the difference matters little to a federal government that is intent on expanding its power. Simply put, there is a growing danger that the embrace of international norms could negate what makes America truly exceptional — its foundational commitment to a federal government of limited and enumerated powers. But what makes the issues in Bond especially concerning is that the federal government appears to be gunning for a Wickard-like expansion of the scope of its treaty power through the Necessary and Proper Clause.
Fortunately, the Supreme Court seems to be prepared to back us away from that cliff. Justice Alito even joked about him and his wife passing out toxic chemicals to large numbers of children.
“On Halloween we gave them chocolate bars,” said Alito. “Chocolate is poison to dogs, so it’s a toxic chemical under the chemical weapons [convention].”
But joking aside, it reveals a serious issue the justices are left to contend with. Do they limit our government’s ability to negotiate treaties that could only be enforced within current constitutional limits; or do they allow the president and the Senate to open our cupboards to United Nations chemical weapons inspectors, overriding our Fourth Amendment rights and violating state sovereignty?
“You can have a treaty where the president is required to set aside any state law that in his view contravenes a national interest,” said Justice Anthony Kennedy, associate justice of the United States Supreme Court. “That’s a structure problem.”
If the Supreme Court decides that Congress has implied power under a Chemical Weapons Treaty to reach domestic violence between husbands, wives and paramours under the Necessary and Proper Clause, Bond could very well prove the “break-out” moment for unlimited federal power. This is because if legislative implementation of an otherwise valid treaty is unbound by the 10th Amendment, there is no principled argument to stop the federal government from displacing any other constitutional guarantee or structure through the combination of international treaty and legislation.
The vertical separation of powers, after all, is not a second-class constitutional protection. Our system of dual sovereignty is just as essential to protecting liberty as the Constitution’s horizontal separation of powers and its affirmative guarantees of individual liberty. These features are interlocking components of an overall mechanism that cannot function as designed without each component maintaining its integrity. A threat to one is a threat to all. That is why a bright line must be drawn at the threshold of kitchen cupboards, cleaning cabinets, and fishbowls when it comes to implied congressional power under a Chemical Weapons Treaty.
Bond must not become the “break-out” moment in which promises made to foreign nations yield unlimited federal power.
— Nick Dranias is constitutional policy director for the Goldwater Institute.