At the U.S. Supreme Court on Tuesday, the subject for debate was the reach of the Constitution’s treaty power. But the justices’ questions covered subjects from sarin gas to Halloween trick-or-treating. And the facts of the case sounded more like a soap opera.
In 2005, when Carol Anne Bond learned that her best friend was pregnant, she was delighted. Delight turned to rage, though, when Bond discovered that her own husband was the father. Soon, the spurned wife was spreading potentially lethal chemicals on her rival’s mailbox and mail, front door, car and other surfaces.
The chemicals, however, were orange, and thus easily spotted. The mistress, sustained only a burn on her thumb. That may be why, when she went to the police for help, they didn’t take the matter seriously. The federal government, however, did. Eventually postal authorities videotaped Bond spreading the chemicals 24 separate times. Federal authorities charged her with violating the 1993 Chemical Weapons Convention, and she was sentenced to six years in prison.
She appealed her conviction, maintaining that the legislation enacted to enforce the treaty unconstitutionally usurps the states’ police powers and goes beyond the meaning of the Chemical Weapons Convention.
Dissecting The Treaty
Inside the Supreme Court on Tuesday, some of the court’s liberals had skeptical questions for Bond’s lawyer, Paul Clement.
Justice Ruth Bader Ginsburg noted that Clement had conceded that the treaty itself is valid. And, she observed, the legislation to enforce the treaty largely copies the treaty language.
Justice Sonia Sotomayor observed that “chemical weaponry is at the forefront of our foreign policy efforts right now.” Consider Syria, she said. “It would be deeply ironic” if after all the criticism we have made of Syria, the court were to say that the implementing legislation was unconstitutional.
Justice Elena Kagan asked Clement what it was that he finds unconstitutional about the legislation. He replied that it violates the enumerated powers given to the states in the Constitution.
But, replied Kagan, here “the enumerated power is the treaty power.” So where do you find the constraint on it?
Justice Anthony Kennedy asked Clement, point blank, if he would have advised President George H.W. Bush that the treaty was unconstitutional and that he should not sign it. “No, absolutely not,” Clement said, because the states are fully capable of enforcing its provisions.
Justice Ginsburg: “There’s an irony in what you just said because the victim, many times, went to the state police and said, ‘Please help me,’ and they turned her away a dozen times.”
Justice Kagan asked what if the treaty were the same but applied only to sarin gas, and some chemist manufactures sarin “and sends it through the ducts of a house and kills everybody in it.” Would allowing federal prosecution for that be unconstitutional?
Clement replied that Congress could ban sarin entirely, whereas in this case Bond used chemicals that are “perfectly lawful.”
That, replied Justice Kagan, was “imagining a world” where judges “try to get inside the head of treaty makers” to determine whether there’s a national interest in regulating sarin gas, as opposed to other potentially dangerous chemicals. That, she said, was a “completely indeterminate test,” that would put judges instead of treaty makers in charge of deciding “what is in the national and international interest.”
Justice Antonin Scalia asked “why is sarin different from vinegar” in terms of allowing federal prosecutions? Because, replied Clement, Congress, could legitimately ban sarin gas, and that’s very different from chemicals that are only dangerous because they are used in a malicious way.
If Clement took a pounding from some justices, Solicitor General Donald Verrilli, the government’s chief advocate, faced an even bigger and more vociferous firing squad.
Questioning Congress’ Limits
Chief Justice John Roberts, who had been silent during Clement’s argument, now began rapid-fire questions. Roberts asked why, under the government’s reasoning, Congress couldn’t pass a statute usurping all of the states’ police powers.
Verrilli said it seems “unimaginable” that a president would agree to such a treaty, that two-thirds of the Senate would ratify it, and that both houses of Congress would pass laws implementing such a broad power. Justice Kennedy noted caustically that “it also seems unimaginable that you would bring this prosecution.”
The prosecution, of course, was brought initially in the George W. Bush administration. But Verrilli nonetheless eagerly defended it. “There may be an outer bound,” in some future case, he said, but “this case is nowhere close to it.”
The history of the treaty power, he said, was in fact not to rely on the states to enforce treaty provisions, but to give that power to the federal government.
Justice Stephen Breyer offered “an easy way out”: allow federal prosecutions for the 43 chemicals listed in the treaty, and don’t focus on the provision that covers other chemicals not used for peaceful purposes. Verrilli was unwilling to accept that.
Justice Samuel Alito chimed in to say that “ordinary people” would be “flabbergasted” to learn about Bond’s prosecution for deploying chemical weapons. This statute is so broad, he said, that it even covers injury to animals. “Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?” After all, observed Alito, chocolate is poisonous to dogs.
As the hypotheticals got sillier and sillier, and the gaiety more and more pronounced, Verrilli interjected that “this is serious business, with all due respect. One of the very things we are trying to sort out right now in Syria,” Verrilli noted, “is where the line is between peaceful uses and warlike uses.” The same terms appear in the Nuclear Nonproliferation Treaty, he observed, and “we’re engaged in very sensitive negotiations right now … trying to draw exactly the same line,” presumably with Iran.
But, Justice Kagan asked, why are the categories in the Chemical Weapons Convention so broad? Because, Verrilli replied, “you can’t predict in advance how chemicals are going to be used and how toxic they will be in particular combinations.”
Justice Breyer was clearly irritated and incredulous. “If I write the opinion that I think the law requires me to write,” are you telling me that will harm “the national security interests of the United States?”
Verrilli answered that “there is a real risk” in courts getting involved in defining what the terms of a treaty mean. And it would “undermine the ability of our negotiators … to make treaties in the future.”