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Argument preview: New look at old precedent

At 10 a.m. Tuesday, the Supreme Court will hold one hour of oral argument on the scope of Congress’s power to pass a criminal law to enforce an international treaty, as the case of Bond v. United States (12-158) returns to the Court.  Arguing for Carol Anne Bond, the Pennsylvania woman in the case, will be Paul D. Clement of the Washington law firm of Bancroft PLLC, and representing the federal government and defending that power will be U.S. Solicitor General Donald B. Verrilli, Jr.


Ninety-three years ago, the Supreme Court handed down its decision in Missouri v. Holland, either a sturdy precedent on the power of the national government, or a precedent without much real meaning any more — depending upon who is analyzing it.  Either way, the Supreme Court has given itself a chance to look anew at the decision, and the potential is there to cut back on national authority in favor of states’ rights — a goal being pursued with new vigor in the nation’s political as well as its legal life.

The 1920 decision in Holland can be read to give Congress nearly unlimited power to pass laws to carry out the U.S. government’s obligations under formal international treaties — national laws that, in fact, might be invalid if they were passed with no connection to a treaty.  Since the Court has never cast aside that precedent, it remains on the books to buttress congressional power.  But some historians have said that Holland is almost a dead letter, since the treaty power itself is in severe decline, and the pattern in more recent years has been for many global agreements to be made by direct pacts between national government leaders, without a reviewing role on the U.S. side for Congress.

In the Bond case, though, there is a treaty directly at issue.  Ratified by the United States in 1997, it seeks to ban the spread of chemical weapons around the globe.   It requires the countries that sign it to bar the development, production, stockpiling, and use of such weapons, and commits the signers to the weapons’ destruction.  Each signing nation is obligated to adopt measures to implement the treaty on their home fronts, and Congress did so for the U.S. in 1998.   That law generally makes it a crime to do any of the acts banned by the treaty itself, but adds a ban on mere possession; it has an exemption for “any peaceful purpose” that is related to industrial, agricultural, research, medical, or pharmaceutical activity.  It defines “chemical weapon” as any toxic chemical that can cause death, temporary incapacitation, or permanent harm, to humans or animals.

Both the treaty and its U.S. implementing law obviously are of geopolitical significance.  But that is not the circumstance that the Supreme Court is pondering in the Bond case.

Federal prosecutors in Pennsylvania used the law against Carol Anne Bond of Lansdale, Pennsylvania, for attempting to harm a close friend with poisons after discovering that her friend had become pregnant in a liaison with Bond’s husband, Clifford.  Vowing revenge, she obtained a toxic substance from the chemical company where she worked, and put it on various surfaces that the woman might touch — door knobs, car door handles, and a mail box.  The result was that the woman did suffer a burned thumb from touching one of those sites.

Charged with violating the 1998 law by possessing a chemical in a way that prosecutors contended was covered by the law, Bond tried to have the charges dismissed.  Her lawyers argued that the 1998 law as applied in her case was beyond Congress’s power, that it violated states’ rights under the Tenth Amendment by invading the power of a state to prosecute under its own criminal laws, and that the incident had no connection to anything of concern to the federal government.

That challenge failed, so Bond went to trial, and was convicted.  She was sentenced to six years in prison, plus five years of supervised release.  She also was fined $2000 and ordered to make restitution totaling $9,902.79.  She then appealed to the U.S. Court of Appeals for the Third Circuit, which upheld her conviction.  Turning aside her Tenth Amendment challenge, the court of appeals ruled that only a state could sue to protect its prerogatives.   The case then moved on to the Supreme Court.

Two years ago, Bond won a unanimous ruling that allowed her to sue to challenge the constitutionality of the law she was charged with violating, and thus to challenge her conviction and sentence.  The Court decided that individuals who face prosecution in a criminal case for violating a law that might be struck down as beyond Congress’s powers have a right to bring that challenge, not on behalf of a state, but in pursuit of their own interests in the rights that are protected by the proper separation of power between national and state governments — that is, federalism principles.

During the argument on her case, the Justices strayed beyond the question of her right to bring her challenge to discuss the sweep of the 1998 law.  Justice Samuel A. Alito, Jr., for example, said the law was so broad that Bond could have been prosecuted under it if she had only put vinegar into her former friend’s fish bowl.

The Justices, however, did not rule on whether Bond’s conviction was valid.   The case then returned to the Third Circuit so that Bond could renew her Tenth Amendment claim.  Again, the court of appeals upheld her conviction.  It relied very heavily upon the 1920 precedent in Missouri v. Holland.  Although saying it was puzzled by the government’s use of the 1998 law to prosecute Bond in the circumstances here, the Third Circuit refused to give the law a narrow interpretation to avoid ruling on its constitutionality.

Moving on to that basic issue, the Circuit Court ruled that it was required by the Holland precedent to uphold the law.  There was no question in this case, it said, that the treaty itself is valid, and the Holland decision declared that, if a treaty is valid, then an implementing law is, too.  The “only relevant question,” it said, was the validity of the treaty itself.

In August of last year, Bond’s lawyers sought Supreme Court review again.

Petition for certiorari

Arguing that the Third Circuit had produced a “startling result” by misreading Missouri v. Holland, Bond’s petition for review raised two questions: first, whether the Constitution puts any limits on Congress’s power to pass a law to implement a treaty, at least where the law intrudes on state power and is not necessary to carry out U.S. treaty obligations, and, second, whether the 1998 law could be given a narrowing interpretation so that it would not apply to “ordinary poisoning cases” as a way to avoid facing constitutional questions over the “continuing validity” of Holland.

Both questions appeared to be designed to take advantage of two developments that had occurred as this case had unfolded previously in the Supreme Court: the fact that the sweep of the law as read by the government had been “on full display” in that oral argument, and the fact that the Court had relied upon federalism principles to find that Bond had a right to bring her challenge. Those developments were treated as strong points already in Bond’s favor before a Court that is sensitive to the Constitution’s “structural limits” on federal power.

The first was clearly a direct constitutional plea for the Court to put a curb on Congress’s power to implement treaties, and in the process undercut the Third Circuit’s expansive reading of the Holland precedent.  If the Court were not prepared to do that, the second question was a plea to read the 1998 law in a way that would spare the Court having to rule directly on Holland‘s scope.  A favorable response from the Court on either would nullify Bond’s conviction while providing a chance for a Court majority to lay down a firm new federalism precedent, perhaps implicitly replacing Holland.

This was clearly a creative way to use a single criminal conviction to advance a project of protecting state sovereignty against a spreading federal power.  Indeed, the first two pages of the petition brought a fervent plea to prevent a grant of “unlimited authority” to Congress (the quoted phrase was used twice in those pages) that would result from turning an enumerated federal power into much more than the Founders had intended.   It is up to the Court, Bond’s lawyers contended, to “clarify that statutes enacted to implement valid treaties, like all other laws, must comply with the Constitution’s bedrock structural limits on our system of limited but enumerated federal powers.”

Along the way, even in its early pages, the petition also sought to keep the Court’s factual focus on the specifics of Bond’s case — and that, too, reminded the Court of some of  the exchanges at oral argument previously.  The petition’s first page included this assertion:  “A domestic dispute culminating in a thumb burn is not an obvious candidate for a federal prosecution.”  That also reinforced the petition’s argument that this criminal episode was well within the reach of state or even local law.   Bond has never contended that she should avoid being prosecuted altogether.

Much of the body of the petition is devoted to fundamental complaints about “the central government’s seemingly insatiable appetite for the federalization of traditional state crimes,” and about the constitutional hazards of tinkering with “fundamental tenets of our federal government of few and defined power.”  Although there is considerable effort in the petition’s fuller arguments to demonstrate concern over what Missouri v. Holland actually means, there is also a studied effort to show that the 1920 precedent does not have to be read as expansively as the Third Circuit did, and as federal prosecutors believe.

The federal government urged the Court to deny review, defending the Third Circuit’s ruling — including its broad reading of Holland — but putting heavy emphasis on the argument that Bond’s case was not “an appropriate vehicle” for deciding either of the questions raised, since the 1998 law at issue represented a valid exercise of Congress’s separate and independent power to pass laws under the Constitution’s Commerce Clause or the Necessary and Proper Clause.

The alternative sources of power to pass such a law, the government’s brief in opposition said, removed virtually any question about the validity of the law.   Congress clearly has the authority to define criminal conduct that implicates federal interests, and what Carol Bond did “fits squarely” within the terms that Congress wrote into the law, the brief said.   And, it added, there is no basis for denying Congress the authority to pass criminal statutes just because states have laws of their own governing the same kind of conduct.

In any event, the government asserted, the Court need not look for a way to narrow the law’s reach as a way of avoiding a constitutional question, because there is “no serious constitutional question” at stake.   However, if the Court were to focus on Bond’s suggestions as to how to narrow the law’s interpretation, the brief said, her proposals are simply attempts to diminish the seriousness of her criminal assault using a dangerous chemical that, if used by an organized government, would clearly violate the chemical weapons ban in the treaty.  “Her actions were anything but ‘peaceful,'” the brief contended, so she could not possibly qualify for the “peaceful purposes” exception in the implementing U.S. law.

While making much of the Commerce Clause’s alternative support for the 1998 law, the federal brief also sought to dispute the suggestion that it had waived that argument in the lower courts.  It argued that, while it had told the district court that had tried this case that the law was not based upon that congressional power, nothing barred it from now invoking that separate authority to defend the statute’s validity.

While contending that the Third Circuit was correct in its interpretation of the Holland precedent, the government said there is no disagreement among the appeals courts on that issue.

Carol Bond’s side of the case drew the support of a few conservative or libertarian advocacy groups, strongly attacking Missouri v. Holland and centralized government power in general, while the government drew the support of a group of Yale Law School scholars contending that there are already sufficient constitutional restraints on the treaty power and that, in any event, the kind of treaty at issue in this case represents “a vanishing breed of lawmaking” in the modern world.

On January 18, the Court granted review, clearly taking on both questions raised by Bond.

Briefs on the merits

Carol Anne Bond’s brief on the merits continues the theme of astonishment at the breadth of power that the government has claimed, and at the stretch of that power to reach “a domestic dispute over marital infidelity that took place in a small residential borough in Montgomery County, Pennsylvania.”

The asserted incongruity of the power claim and its real-world application here pervades the written argument, to support the petition’s own sweeping claim: that this case involves the very “bedrock notion that the federal government is one of limited and enumerated powers.”  The government, Bond’s brief argued, is actually stuck with the obligation to resist any narrowing interpretation of the law, by the audacity in using it against Bond in the circumstances at issue.

In laying out its merits arguments, the Bond filing is a studied attempt to counter the widest-reaching interpretation of Missouri v. Holland — that is, that America’s signing of a treaty turns Congress loose to pass any statute that it wishes to carry out the treaty’s obligations, including a pervasive home-front criminal law.  If it were not for a treaty being on the books here, the brief said, Congress obviously would not have the authority “to criminalize every poisoning or every malicious use of chemicals in the nation.”

That set the stage for the brief to read the Holland precedent as narrow, with the resulting bow to broad congressional power a suggestion made “almost in passing.”   There is, according to the brief, a single line in the Holland opinion that supports the government’s wide-ranging interpretation of its scope.

Although Congress has the authority to pass legislation to carry out a treaty when such a pact is not self-executing, the Bond brief argued, the constitutionality of the treaty itself is not a guarantee of the validity of any statute that Congress chooses to put it into effect in the United States.

As a back-up argument, though,  Bond’s lawyers contended that, if Holland means what the government and the Third Circuit found it to mean, the 1920 precedent “would have to be overruled.”  And that laid the groundwork for Bond’s argument that the Court need not disturb Holland, if it accepts the notion that the 1998 law does not have to reach as broadly as it was applied in her case.  If the Court does not take that option either, the brief suggested, then the 1998 law would have to be struck down as applied in Bond’s case.   The police power in this country, the brief reminded the Court, is reserved to the states, by the Tenth Amendment added near the beginning by the Founders.

The government’s brief on the merits opened with background on the treaty and on the 1998 implementing law as the platform on which to analyze the specific case against Carol Anne Bond.  And that recitation is filled with the perceived horror of the properties of the chemicals that Bond was accused of using against her unsuspecting former friend.  Bond, the brief recalled, “attempted to poison” her husband’s paramour “at least 24 times over several months.”

The brief implied that local police were mostly unresponsive to the woman’s repeatedly expressed concerns about the substances she noticed on places she would routinely touch.  And the brief described how the woman “had to hold her young daughter in one hand while using the other to check for and remove the chemicals she repeatedly noticed on her car door handles.”

The building image in that section of the brief is the necessity for federal prosecution, if there was to be any official response to the use of a chemical, a few crystals of which “could kill a child” if ingested.

When the federal brief turned to legal arguments, it began by placing Bond’s conduct within the reach of the 1998 law, and far outside the scope of the benign “socially productive, non-malicious activities” for which that law provides an exemption.  Bond’s actions, the brief suggested (as the opposition to the petition had) were not different from “malicious use” of the very same chemicals by a government covered by the treaty.

The brief mounted, again, a full defense of the 1998 law under Congress’s Commerce Clause powers, and likened that law to one that the Court had upheld dealing with trafficking in illegal drugs.

The most energetic part of the government brief, it seemed, was its defense of Congress’s power to pass laws to implement treaties.  The idea that local conduct could be carved out of the treaty power, the brief asserted, “echoes arguments that have been made — and rejected — since the Founding.”  And that rejection was made abundantly clear, the brief said, in the Holland decision in 1920.

While the brief defended a wide berth for the treaty power, it also contended that the use of that power is hemmed in by constitutional limitations and, in any event, argued that Congress has not attempted to “exercise a general police power under the guise of implementing a treaty.”  The brief dismissed the foreboding displayed in Bond’s federalism arguments as a “hypothetical parade of horribles.”

Bond has the support, on the merits, of a variety of conservative and libertarian advocacy organizations, generally voicing deep concern over widening federal power over crimes that can be handled at the state and local level.   She has also gained the backing of eleven states, focusing mainly on the Holland decision: first, arguing that it does not justify the scope that the government has claimed in the 1998 law, and, second, that if it does go that far, it should be dismissed as “no longer good law because it does not reflect subsequent doctrinal development” on Congress’s authority under the Necessary and Proper Clause.

The federal government has about the same number of amici briefs in support and those filings are dominated by arguments made by scholars providing full defenses of congressional treaty power.   In addition, though, there are arguments by producers of chemicals with toxic properties, concerned about misuse of those materials for harmful purposes, and by negotiators of weapons treaty experts and former State Department legal advisers.


Carol Anne Bond, a jilted suburban housewife bent on revenge, is already the unlikely heroine of the modern states’ rights movement, having already won one major Supreme Court ruling that established the citizen’s right to challenge the wide expanse of national authority.  Her second trip to the Court has the potential to make her even more a truly historic figure in the annals of America’s most-enduring constitutional debate: where to draw the line between national and state government authority.  It was a debate that nearly broke up the Constitutional Convention in 1 787, a debate that seriously complicated the constitutional ratification process, a debate that did not end with the ratification of the Tenth Amendment, a debate that led to Civil War, and to countless legislative and political wrangles in virtually every decade of U.S. history.

In short, the coming decision in Bond. v. United States may wind up with a very prominent place in constitutional history, and the two sides in the case have combined to push that potential almost to the point of predictability.  This case is a grand example of America’s continuing constitutional conversation, and compelling arguments have been put forth with vigor and considerable imagination on both sides.

It is, indeed, difficult to imagine how this case can be decided without making history.  A ruling in Bond’s favor, even on a narrow ground of reading her conduct as outside of the 1998 law, would have to be justified by some assessment of Congress’s authority to choose how it implements treaties, and some assessment of Congress’s obligation to show considerable respect for state sovereignty.

The government probably has done enough, in its filings, to keep the Court from ruling for Bond on the simple premise that what she did was exempted from the law by some reading of the “peaceful purpose” of the law.  The facts of the case have been portrayed in a scary way by government lawyers, and that may deter most of the Justices from giving her a pass on that ground.

An exemption for her conduct, though, would appear to be the only way to keep the decision narrow.  Beyond that choice, the Court has to turn to fundamentals of national and state authority, and Missouri v. Holland is a fit forum for doing so.

Recommended Citation: Lyle Denniston, Argument preview: New look at old precedent, SCOTUSblog (Nov. 2, 2013, 12:04 AM),