Supreme Court skeptical about use of chemical weapons treaty in charging wife


Bond v. United States

The case stems from the prosecution of a Pennsylvania microbiologist who used toxic chemicals to try to settle a personal score…

The question before the high court is whether the government’s broad assertion of federal authority in a local criminal case comports with the structural limits of the US Constitution.

Under the Constitution, the federal government’s powers are restricted to those listed by the framers of the Constitution. All other powers, including general police powers, are left to state and local governments…

But what if the federal government enters an international treaty which extends into areas of state jurisdiction, can it enforce the treaty even though it would be treading on states’ traditional ground? It’s doubtful the framers intended for the federal government to be hamstrung at the negotiating table by minor overlaps of state power. On the other hand,

“In principle, your position constitutionally would allow the president and the Senate, not the House, to do anything through a treaty that is not specifically within the prohibitions of the … Constitution,” he said.

Breyer said that he doubted the framers wrote the Constitution intending that result.

The case also dredges up a 1920 Supreme Court case, Missouri v. Holland. Here is a facts summary from Bloomberg:

In 1916, the US and Great Britain signed a treaty protecting migratory birds that were important as a source of food and in controlling harmful insects. The birds traveled through Canada and parts of the US but were in danger of extermination. The Migratory Bird Act was passed to carry out the terms of the treaty. Missouri objected because an earlier act of Congress that attempted, by itself and not in pursuance of a treaty, to regulate killing migratory birds within the states was held unconstitutional in district court. Missouri argued that because Congress had no power to pass this law without the treaty, they should gain power because they are enforcing a treaty.

Wikipedia’s case summary:

protection of a State’s quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the subject alleged to be unconstitutional, and that the federal government’s ability to make treaties is supreme over any state concerns about such treaties having abrogated any states’ rights arising under the Tenth Amendment… It is also notable for Justice Holmes’ reference to the idea of a living constitution.


For a government court, and the supremes are first a governemnt court, to find rights in document penumbras and twist logic into a pretzel and call a penalty a tax I think they can agree to make anything it wants to mean anything it wants anytime it wants.


I have to ask why the federal government feels that local code is insufficient to deal with multiple attempts at causing grave bodily harm through poisoning.

Another story on this, from NPR:

The procedural issue that the Court is balking at here involves whether the Senate, by ratifying a treaty (which is a power granted only to the Senate) can override a lawful prerogative of States (such as the desire to enforce their own criminal codes). There’s a number of issues here, including the intent of the treaty (here, the CWC, Chemical Weapons Convention, which banned war-like use of chemicals by nation-states), the intent of the Senate in ratifying it (was it to agree not to use chemical weapons, or to impose federal code upon states?), and limit of States to prosecute their own laws.

I see the natural extension here: the Arms Trade Treaty, signed by Sec of State Kerry in September, which would require purchases of imported handguns by US citizens to be recorded by the Federal Government and reported to the country of origin. While that’s not strictly against an existing US or State code, it does require considerable compliance requirements not currently present, and raises privacy concerns. Fine if the local sheriff’s police and State of Missouri know that I’ve registered my wife’s Uzi. Why does Israel need to know about it?

And if the UN ever gets it together enough to actually pass a comprehensive small arms ban, how does the US signing such a ban interplay with protecting the Second Amendment?

So this is an important case, and I have to wonder if the Federal government pushed for prosecution here because its penalty for chemical weapons is more strict (3 times the state penalty noted in the story) than the local penalty for poisoning, or as a test case to declare jurisdictional expansion for such future cases. I’m not sure that’s what the Federal government wants - do they want to have to take lead on all gun-related crimes because handguns are considered weapons of war and therefore shooting is an act of terrorism (as if attempted murder wasn’t serious enough)? We’re talking a serious shifting of resources here, as well as a general upscaling of expenses and clogging of federal dockets.

I would think the Chemical Weapons Convention would apply to limiting actions of signees. If the US agrees to not use chemical weapons, the US is the obliged agent; it’s a considerable stretch to say that the US is granted the authority by the CWC to prosecute US citizens for their own use of harmful chemicals.

I’m more inclined to say that the US already has the authority to prosecute citizens for the use of chemical weapons when it is a federal crime to do so. Is throwing acid in someone’s face a violation of municipal, county, state or federal law? Probably “yes” to all, even if not explicitly stated, but all levels of authority (city police, county sheriff, state highway patrol, FBI, for example) would have some limitation of when each gets involved. I think empirically the issue is often left to the most local jurisdiction where the criminal code is sufficient for prosecution. Most small municipalities, for example, allow the State or County to prosecute murder charges, but handle traffic violations themselves (provided they have their own police force). A larger entity may intervene when sufficiently warranted - ie, the crime crosses jurisdictions or (especially for federal) State lines, the crime is sufficiently serious (crimes against a head of state) or part of a widespread issue requiring coordinated resources (drug trafficking), or the lower jurisdiction lacks authority to prosecute (the County prosecutor would not file charges of treason or counterfeiting currency).


One point made by the US Solicitor was that local law enforcement repeatedly declined to pursue this, and it was only when postal inspectors got involved that the arrest was made.

Anyway, your view carried the day handily, as the court ruled 9-0 Monday that the chemical weapons charge could not be levied against Bond. The opinion disappointingly did not really address to what extent the federal government could use treaties to override state laws.

The “minor thumb burn” suffered by Bond’s target was “a two-bit local assault” and a matter for state law enforcement, Roberts says.

The Chief Justice’s summary is filled with such animated language, about how accepting the federal government’s arguments might sweep in “detergents under the kitchen sink,” “stain removers in the laundry room,” and “drops of vinegar into the goldfish bowl.”…

The Chief Justice notes that while the judgment of the Court is unanimous, Justices Scalia, Clarence Thomas, and Alito have all written opinions concurring in the judgment on other grounds. In the courtroom, the Chief doesn’t go into why his three colleagues have concluded that the case should have been decided on constitutional, rather than statutory, grounds. And he certainly doesn’t mention the many barbs Justice Scalia has aimed in his direction in the written concurrence.


Thanks for following up on this.

Given the “minor thumb burn” you noted, I understand why local law enforcement didn’t prosecute. And why the postal service did. Minor injury (with potential for major injury) but serious misuse of mail.

That does remain a question. I’d think such an override would have to come through statutory grounds such as U.S. Code, which requires signing the treaty, ratification by the Senate and signing by the President. If the treaty is not sufficiently straight-forward additional codification may be necessary. A treaty against anti-personnel mines would prohibit our armed forces from using them in combat but may not prohibit a hunter from using an explosive-armed bear trap (is there such a thing? I think I made it up). A treaty against selling food made with GMO ingredients may or may not impact a home gardener who likes his disease-resistent, GMO tomatoes but does not sell them. Do the GMO seeds, intended for home gardening, violate the treaty, or only the selling of the tomatoes themselves in a retail or wholesale setting? In both instances, a change would need to be made in U.S. Code.


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