United States v. Bond: From Broccoli to Vinegar

Yesterday, the Third Circuit Court of Appeals issued a second ruling in United States v. Bond. In a 2009 ruling, the court had held that Mrs. Bond lacked standing to challenge her criminal conviction on the grounds that the federal statute that prohibited her conducted was beyond the authority of Congress. In a unanimous decision, the Supreme Court reversed the Third Circuit’s standing determination and remanded the case.  Now, on the merits, the lower court has sustained the conviction—unanimously, but in separate opinions and not without grave misgivings. The sources of discomfort are many, beginning with the facts.

Mrs. Bond discovered that her husband had fathered a child with a friend of hers. Bent on revenge, she procured (partially through theft, partially through mail order) poisonous chemicals, which she smeared on the detested rival’s mailbox, car door handles, and house door knob. Prior to the plot’s eventual discovery, the chemicals caused a “thumb burn” on the part of the victim, which required rinsing with cold water. The prosecution concedes that there was never any intent to kill and that no danger to the public ever arose.

While plenty of state laws exist to address this sort of stuff, Mrs. Bond was indicted and prosecuted on federal charges. These included violations of 18 U.S.C. 229, which criminalizes the knowing possession or use of any chemical that “can cause death, temporary incapacitation or permanent injury to humans or animals” (unless the substance is intended for peaceful use). The maximum penalty for violations of the statute is death. The prosecution did not seek the death penalty for Mrs. Bond; in the end, she drew six years in the slammer.

Where the hell do the feds get off passing and enforcing a statute like that? The answer, the government argues (after earlier flirts with the Commerce Clause) is the Treaty Power. The U.S. is a signatory to an international (1993) Chemical Weapons Convention. To implement that treaty domestically, Congress enacted the Chemical Weapons Convention Implementation Act of 1998. 18 U.S.C. 229 is a “necessary and proper” part of that enactment. Mrs. Bond squarely falls under the terms of the prohibition. Yes: a prosecutor who pleads a lovers’ quarrel into a federal crime and act of terror ought to have his head examined, and possibly lopped off (figuratively speaking). But the law is the law, and so there.

Bond poses tons of messy legal and constitutional problems. There’ll be time and occasion enough for comment: the Third Circuit judges’ opinions read like invites for a cert petition, and Mrs. Bond’s lawyers—Paul Clement, and Ashley Parrish and his colleagues at King & Spalding—will surely file that petition. For now, note the central, obvious theme: there’s got to be some line that separates an international agreement over weapons of mass destruction from the ant spray underneath your kitchen sink. The horror is that all the lines have collapsed.

You could say that the treaty power must have a substantive limit: its exercise must govern relations among nations, or stuff that crosses borders. That limit, though, is long gone. Or, you could say that Congress can’t use the treaty power to circumvent other enumerated powers limitations: that contention runs headlong into Missouri v. Holland (1920). Or, you could say that Sec. 229, in light of its astounding breadth, isn’t really “necessary” to implementing the international treaty (and therefore beyond congressional authority); but that argument is foreclosed by an unbroken stream of decisions to the effect that “necessary” means what Congress says it means. Or, you could say that Mrs. Bond’s actions were light years removed from the intended scope and purpose of the act and that the statute, as applied to her, exceeds congressional power: that maneuver meets with the objection, buttressed by a raft of cases, that private parties can’t simply “excise” their particular conduct from the statutory text but must rather show that the statute is unconstitutional in any conceivable application, including the terrorist with a suitcase of poison gas. So where and what is the line?

Debate over the scope of federal authority may turn, yet again, on an article of domestic consumption. Section 229, Justice Alito noted in oral argument over the standing question in Bond, makes a federal criminal of the idiot (my term) who pours vinegar into a goldfish tank. If you liked the broccoli contretemps, you’ll love the vinegar brawl.

Michael S. Greve

Michael S. Greve is a professor at George Mason University School of Law. From 2000 to August, 2012, Professor Greve was the John G. Searle Scholar at the American Enterprise Institute, where he remains a visiting scholar. His most recent book isy The Upside-Down Constitution (Harvard University Press, 2012).

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