Sex, Lies and Chemical Weapons, a Supreme Court Drama

By Kristen Friend, staff U.S. Supreme Court and Congress writer – February 10, 2011

The Supreme Court is poised to hear a unique Tenth Amendment case when oral arguments resume February 22. The case comes with an unexpectedly juicy plot, complete with a love affair, attempted murder, theft and a federal chemical weapons law.

The Tenth Amendment limits federal power, and is the darling of Tea Party activists and conservative politicians wishing to dismantle federal programs by declaring everything from the Affordable Care Act to Social Security to the national highway system unconstitutional. While this case does not touch on such lofty topics, reading instead like a prime time police drama, it is still being closely watched. The outcome could lead to a new understanding of who may bring challenges to a law’s constitutionality under the Tenth Amendment.

Carol A. Bond and Myrlinda Haynes, of Lansdale, Pa., were best friends. When Haynes became pregnant, her friend was initially happy for her. But her happiness lasted only until Bond learned that her own husband was the father-to-be of her expecting best friend’s child.

Upon learning of the affair, Bond swore revenge, threatening to make Haynes’ life “a living hell.” [1] She then began a dogged but unsuccessful campaign to kill her former friend, trying on at least 24 occasions to poison her by spreading lethal chemicals on her car, home and mail. Bond, a microbiologist, was able to attain the chemicals by taking them from her employer, and was aware of what types of poison could be lethal in small amounts through skin contact.

Haynes, however, noticed the chemicals, and survived the attacks with only minor injury. As the campaign waged on, Haynes caught Bond placing poison in her mailbox. She notified her mail carrier, who called federal postal inspectors to join the investigation. Postal inspectors set up surveillance cameras around Haynes’ home, ultimately recording Bond in the act of stealing mail and spreading more poison on her friend’s car.

Using the surveillance tapes as evidence, authorities obtained a search warrant, and found stolen mail and a stock of two lethal chemicals in Bond’s possession. Since federal authorities were now involved, Bond was charged with two federal crimes. First, the expected counts of mail theft, and second, an addition two counts of “possessing and using chemical weapons” in violation of the Chemical Weapons Convention (CWC), 18 U.S.C. § 229(a)(1). [2]

The CWC is aimed at reducing worldwide stockpiles of chemical weapons and at keeping harmful substances out of the hands of terrorists and rogue states. The United States became a signatory to the convention, and as a requirement of the treaty, passed legislation aimed at enforcing the agreement in 1998, limiting access to and use of toxic chemicals in the US. [3]

Initially, Bond attempted to have the two chemical weapons charges dismissed on the basis that they were not constitutional under the commerce clause, treaty clause or any other power of the federal government. The district court disagreed, denying the motion to dismiss on the basis that the CWC, 18 U.S.C. § 229(a)(1), was enacted “under the necessary and proper clause” in order to “comply with the provisions of a treaty.” The court and federal prosecutors conceded that the law was likely unconstitutional under the commerce clause, but that fact was irrelevant, with the court finding the “commerce clause is not implicated because of the necessary and proper clause.” [4]

Faced with the evidence against her, Bond pleaded guilty, reserving the right to appeal.

Upon appeal, the U.S. Court of Appeals for the Third Circuit did not address Bond’s argument on the merits, avoiding the question by ruling she lacked standing to bring a Tenth Amendment case. Tenth Amendment cases, according to the three-judge panel, could only be brought by states, not as third party challenges by individuals.

The question now is whether a private individual has the right to challenge a federal law on the basis that the statute is beyond the limits of Congressional power under the Tenth Amendment. Bond is arguing that the matter was of local concern and that the federal government did not have the authority to use a chemical weapons treaty against her.

When the case was before the appeals court, federal prosecutors agreed that Bond did not have standing to mount a Tenth Amendment challenge. However, with the case now being heard by the Supreme Court, the federal government has reversed course. Solicitor General Neal K. Katyal said of the case, “A criminal defendant has standing to defend herself by arguing that the statute under which she is being prosecuted was beyond Congress’s Article I authority to enact.” [5] As a result, the Court has appointed Topeka, Kan., attorney, Stephen R. McAllister to defend the Third Circuit Court ruling.

The Tenth Amendment has been gaining popularity with groups skeptical of the federal government as an across-the-board way of finding pretty much everything the government does unconstitutional. The movement has spawned a name, Tentherism, and followers, Tenthers.

The text of the Tenth Amendment states that, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [6] All powers of Congress are itemized in the Constitution and those not listed are left to the states.

Historically, congressional power has been interpreted to be rather broad. Congress can spend money, for example, to “promote the general welfare.” [7] Things like having an educated populace and keeping citizens from going hungry have been interpreted to promote the general welfare, thus making the Department of Education and a system of social safety nets constitutional.

Tenthers, however, and those hoping to overturn recently passed health care legislation, have a more extreme interpretation of the limits on congressional power. They believe since the terms “health care” or “education” do not actually appear in the constitution, Congress should have no power to enact laws concerning either, general welfare or no. Representative Virginia Foxx (R-NC), who was recently named chair of a Higher Education subcommittee, is skeptical of federal student loans because the word education does not physically appear anywhere in the constitution. [8] And Senator Jim DeMint (R-SC) has stated that both Social Security and Medicare “probably are unconstitutional.” [9]

The battle over what powers are actually given to Congress in Article 1, Section 8 of the Constitution dates back to the writing of the document itself and was a strong point of contention between James Madison, who feared federal power, and Alexander Hamilton, who argued for a broader role for the federal government. Hamilton favored a more sweeping interpretation of enumerated powers while Madison thought the federal government should be able to do only the things specifically outlined in the Constitution. This idea was in part behind his unwavering opposition to the First National Bank. [10]

Staunch Tenth Amendment supporters hold on to Madison’s interpretation of federal power. Ironically, Madison himself eventually conceded to a broader understanding of congressional powers, signing an act that established the Second National Bank during his presidency. Madison argued the First National Bank, which had been established by Congress and worked with the approval of the people for 20 years, set a constitutional precedent on the matter, signaling that he was open to a more flexible definition of enumerated powers. [11]

The Court has heard few cases recently dealing with the limits of Congressional power. Since the federal government reversed its position, the Court could have summarily reversed the lower court’s decision. In deciding to take this case, they will review the standing issue, potentially setting a new standard that would allow a third party or individual to make a Tenth Amendment challenge to the constitutionality of a federal statute.

The Third Circuit Court feared the potential for a tremendous influx of cases, from housewives to terror suspects, should this occur, and cited that possibility as one point in its decision to deny standing.

Counsel defending the appeals court decision argues that should the Court find Bond has standing, over 90 years of precedent would be reversed. The Brief for the Amicus Curiae Court Appointed to Defend the Judgment relies heavily on precedent set by Tennessee Electric Power Co. v. Tennessee Valley Authority, a 1939 case in which the Court found a private company did not have standing to file a Tenth Amendment challenge. On the merits, counsel argues that a Tenth Amendment challenge to the treaty power is unsupportable since the power to ratify and enforce treaties is specifically given to the federal government and withheld from the states. [12]

Paul D. Clement, representing Bond, argues that the defense is relying on a faulty interpretation of the Tennessee Electric case. Clement says that too many intrusive federal statutes are infringing on states’ rights to pursue justice and advance public safety. According to the Reply Brief of Petitioner, both counsel for Bond and the federal government agree the Third Circuit decided the case incorrectly. There is no bar to standing when a plaintiff is “subject to loss of liberty or property as the result of a federal statute regulating her primary conduct.” [13]

The case is Bond v. United States, No. 09-1227. The Court will hear arguments on Tuesday, February 22.

Sources:

1. US v. Bond, No. 08-2677, http://www.ca3.uscourts.gov/opinarch/082677p.pdf
2. id.
3. http://www.fas.harvard.edu/~hsp/chemical.html
4. Brief for the Amicus Curiae Court Appointed to Defend the Judgment, http://www.abanet.org/publiced/preview/briefs/pdfs/2010-2011/09-1227_JudgmentAmCuCourtAppointed.pdf
5. http://www.nytimes.com/2010/10/19/us/19bar.html?_r=1&hp
6. http://www.usconstitution.net/const.html#Am10
7. US Constitution, Article 1, Section 8, http://www.usconstitution.net/xconst_A1Sec8.html
8. http://www.campusprogress.org/articles/the_tenthers_are_comingand_they_dont_want_you_to_go_to_college/
9. http://articles.latimes.com/2009/sep/16/opinion/oe-rutten16/2
10. http://edsitement.neh.gov/lesson-plan/james-madison-second-national-bankmdashpowers-not-specified-constitution#section-16583
11. id.
12. Brief for the Amicus Curiae Court Appointed to Defend the Judgment
13. Reply Brief for the Petitioner, http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-1227_Petitioner.pdf

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