How a ruling on toxic revenge could change the way treaties are enforced
GWEN IFILL: The Supreme Court heard arguments today in a case full of tabloid intrigue that could also carry consequences for the federal government's ability to enforce an international treaty.
The case involves Carol Anne Bond, who was convicted of using chemicals to attack her husband's mistress. But the story only begins there.
Marcia Coyle of The National Law Journal was at the court today, as always, and she is with us to explain the rest.
This is really about treaties, but tell us first the backstory.
MARCIA COYLE, The National Law Journal: OK.
Carol Anne Bond emigrated from Barbados and lived in Pennsylvania with her husband. She found a new best friend in another woman who emigrated from Barbados and lived in a nearby town. But that friendship ended when she discovered that her husband had an affair with the other woman and impregnated her.
That combination triggered in her a campaign for revenge against the other woman. She was a — Mrs. Bond was a microbiologist by training. She stole a chemical from her employer and downloaded another chemical from Amazon.com, and, over a period of about six, seven months, 24 times she put those chemicals on the other woman's mailbox, car door, front door of her house.
Ultimately, the woman suffered only a burn on her thumb, because the chemicals changed color, and she — the other woman could see the chemicals. The other woman complained to the police several times, and finally the police referred her to U.S. postal inspectors because it's a mailbox. U.S. postal inspectors mounted cameras around her home. They saw Mrs. Bond take something out of — a letter out of the mailbox and also put chemicals in the exhaust pipe of the other woman's car.
She was arrested. A grand jury indictment followed. She was charged with mail theft and also violating a federal law that implements the Chemical Weapons Convention, I think, of 1998.
GWEN IFILL: Which is what brings us to the Supreme Court…
MARCIA COYLE: Yes, absolutely.
GWEN IFILL: … an international treaty, the same kind of treaty that we have been discussing on this program applied to Syria.
MARCIA COYLE: Absolutely.
In fact, Syria actually came up during the arguments. Mrs. Bond brought the case to the Supreme Court, challenging her conviction under this federal law. And her lawyer, Paul Clement, basically had two arguments today. And he — he didn't have an easy time of it.
He argued, one, that this federal law, if it reaches conduct like Mrs. Bond's, which he said in essence is a domestic dispute, it's unconstitutional because it intrudes, interferes with powers that were reserved to the states.
If there were no treaty involved here, Gwen, Mrs. Bond probably would have been charged under state law for assault or attempted murder. But he had a backup argument, too. He told the court if they wanted to avoid the constitutional question, they could interpret an exception in the convention and the federal law for the use of chemicals for peaceful purposes, which he said really means non-warlike conduct.
GWEN IFILL: Killing your husband's mistress, but not trying to go after another country.
MARCIA COYLE: Absolutely. He said, no one who speaks normal English would see what happened here as deployment of a chemical weapon.
GWEN IFILL: So, how did the justices react to that argument?
MARCIA COYLE: Well, there was pushback.
Some of the justices said, well, you know, the treaty power in the Constitution gives exclusive authority to the national government to enter into treaties and authority to Congress to implement them. And the international treaties, once they have been ratified and implemented, are the law of the land. The court itself considered the states' rights arguments here back in 1920 and ruled in favor of the national government.
Justice Sotomayor raised concerns about Syria, saying that this is now at the forefront of our foreign policy, and what you're arguing could really hamper the United States in negotiations — future negotiations.
GWEN IFILL: And that the United States would then have its powers, its sovereignty compromised by this international treaty.
MARCIA COYLE: That's right. Exactly.
And some of the justices, for example, Justice Kagan pointed out that the backup argument by Mr. Clement would force judges to get into line-drawing about what conduct is covered and what isn't and in essence force them into the minds of treaty makers.
GWEN IFILL: Justice Alito made reference to trick-or-treating. This was one of the — you guys were all over the map today.
MARCIA COYLE: Absolutely.
The government was represented by the solicitor general of the United States, Donald Verrilli. And Justice Alito, in order to show, I think, how he feels this law can cover such broad conduct, said to him, well, what would you say if I told you that last week, which was Halloween, my wife and I handed out a chemical that is dangerous under this convention to animals? The convention prohibits the harming and — or the killing of animals, as well as individuals.
So the solicitor general did have a tough time with his argument, which basically is that there really are no hard-and-fast limits on Congress' power here, on the treaty power or the implementing power. Chief Justice Roberts probed him repeatedly about, what's the outer bounds?
And Mr. Verrilli said that really the Constitution itself contains structural limits on this power. Treaties have to be ratified by the Senate, implemented by Congress. And those are the bodies that are going to protect state rights to ensure that a treaty doesn't upset the balance in the Constitution.
GWEN IFILL: The justices sounded a little exasperated by all of this.
MARCIA COYLE: Yes.
In fact, at one point, Mr. Verrilli was given a hypothetical that he said was unimaginable. And Justice Kennedy interjected and said, it's unimaginable that you brought this prosecution.
GWEN IFILL: Marcia Coyle, thanks for being there for us.
MARCIA COYLE: My pleasure, Gwen.