Is thumb burn a chemical weapons violation? Supreme Court takes up case.

The US Supreme Court is set to hear a case on Tuesday featuring enough sex, betrayal, and poison to occupy an entire season of television soap operas.

Yet, beyond the salacious details, the underlying legal issues in Bond v. US (12-158) are as weighty as they come, testing the balance of power between the national government, the states, and the people.

The fundamental question in the case is whether the president and Congress can increase the legislative power of the national government by entering into an international treaty. 

If the answer is yes, such a decision would significantly undercut what the Supreme Court has declared is a bedrock principle of American government – that the authority of the national government is limited to specific powers enumerated in the Constitution.

On the surface, Bond v. US involves federal prosecutors reaching for the strongest statute possible to build a case against a Pennsylvania microbiologist accused of trying to poison her ex-best friend.

Carol Bond was accused of spreading highly toxic chemicals on door knobs, a car door, and a mailbox while trying to poison her former friend, Myrlinda Haynes, after discovering that Ms. Haynes had secretly become her husband’s lover.

It gets worse. Ms. Bond had confided in Haynes that she was unable to have children. Later, when Haynes became pregnant, Bond was thrilled for her friend – until she discovered her cheating husband was the father.

The targeted paramour, Haynes, suffered a chemical burn on her thumb, which she treated under running water in the sink.

After her arrest, Bond might have been charged with any number of state crimes including simple assault, aggravated assault, and harassment. But prosecutors decided – literally – to make a federal case out of it.

They charged Bond with using a “chemical weapon” in violation of a federal statute passed to implement the international Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons.

This is the same Chemical Weapons Convention that Syria recently agreed to sign after reports of alleged chemical weapons attacks that left hundreds of men, women, and children dead in that country’s civil war.

The difference in the Bond case is that the “war” underway was a personal, private battle for revenge against Bond’s former best friend. It is true that she used a chemical as a weapon, but it was not, by any means, the kind of weapon of mass destruction often thought of when using the term “chemical weapon.”

The Obama administration argues in its brief to the Supreme Court that it doesn’t matter. Congress obtained jurisdiction to prosecute chemical weapons use when it passed the statute to implement the international Chemical Weapons Convention. The implementing statute includes a broad definition of what would count as a “chemical weapon.”

“That law generally prohibits use of a chemical that can cause death, temporary incapacitation, or permanent harm to another, unless such use is for a peaceful purpose,” Solicitor General Donald Verrilli wrote in his brief.

Since Bond’s use of toxic chemicals against her former best friend was not for a “peaceful purpose,” Mr. Verrilli said, it amounted to the use of a chemical as a weapon.

Lawyers for Bond challenge the use of the chemical weapons statute to prosecute their client. They say her offense is essentially a local crime.

They argue that the chemical weapons statute is designed to prevent and punish “warlike” activities, whether by a nation-state or by an individual within a nation-state. What it doesn’t do, they say, is allow the national government to prosecute any criminal use of a chemical in a small quantity as a violation of the ban on chemical weapons.

“Construed to federalize every malicious use of chemicals nationwide, the statute radically alters the federal-state balance in a manner the [Chemical Weapons] Convention does not contemplate, Congress did not intend, and the Constitution does not allow,” wrote Washington lawyer Paul Clement in his brief on behalf of Bond.

A central question in the case is whether the Obama administration’s broad assertion of federal authority is consistent with the limited scope of national power laid out by the framers of the Constitution.

Under the nation’s system of federalism, the national government is comprised of a limited number of powers enumerated in the Constitution, while state and local governments retain all other powers – including general police powers.

“Domestic disputes culminating in a thumb burn neither implicate the concerns of the Chemical Weapons Convention nor come within Congress’ authority,” Mr. Clement wrote.

Critics of the administration’s expansive interpretation of its own authority say that Bond’s prosecution is a power grab by the national government at the expense of authority reserved under the Constitution to the state governments.

“The government’s sweeping interpretation of the statute depends upon an equally sweeping theory of Congress’ authority that threatens the bedrock notion that the federal government is one of limited and enumerated powers,” Clement said.

The Obama administration counters that the usual constitutional restraints on expansive exertions of federal authority do not apply in instances when Congress passes a statute to implement an international treaty.

The Constitution’s Necessary and Proper Clause authorizes federal lawmakers to enact sweeping measures that would not otherwise be permitted of the national government. Verrilli cites a 1920 Supreme Court decision establishing that principle.

He said such broad authority to implement treaties is necessary to facilitate effective conduct of foreign policy and the protection of national security. He argues that the structural safeguards upholding the federal-state balance are protected by the requirement that all treaties be approved by a two-thirds vote of the Senate.

“Congress has not exercised a general police power under the guise of implementing a treaty despite petitioner’s hypothetical parade of horribles,” Verrilli wrote.

He said the more restrictive approach suggested by Clement would “hamstring US treaty negotiators and undermine global confidence in the United States as a reliable treaty partner, to the detriment of the foreign policy and national security of the United States.”

Despite the sweeping consequences of the case as a test of federalism and the scope of federal power, the issue for Bond reduces to a single word: punishment.

If charged with a state crime, Bond would likely face three months to two years in prison. Instead, she was sentenced to six years in prison under the federal chemical weapons statute.

A decision in the case is expected by next June.