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Monday, February 25, 2013

Bond v. United States: Validity and Construction of the Federal Chemical Weapons Statute

Charles Doyle
Senior Specialist in American Public Law

The Chemical Weapons Convention obligates the United States to outlaw the use, production, and retention of weapons consisting of toxic chemicals. The Chemical Weapons Convention Implementation Act outlaws the possession or use of toxic chemicals, except for peaceful purposes. The Supreme Court has agreed to hear a case in which the petitioner argues that use of the federal implementing statute in a “run of the mill” assault case exceeds Congress’ legislative power under the Constitution’s Necessary and Proper Clause, Bond v. United States. The case asks whether the primacy of the states over criminal matters limits the Court’s assertion in Missouri v. Holland that “if the treaty is valid there can be no dispute about the validity of the statute . . . as a necessary and proper means to execute the powers of the Government.”

Carol Anne Bond, upon discovering that her husband had impregnated another woman, repeatedly dusted the woman’s mail box, front door knob, and car door handles with a toxic chemical. Mrs. Bond was indicted in federal court and pled guilty to possessing a chemical weapon, but reserved the right to appeal. The United States Court of Appeals for the Third Circuit rejected her constitutional challenge. A concurring member of the panel, however, urged the Supreme Court to clarify the nearly century-old pronouncement in Missouri v. Holland:

Since Holland, Congress has largely resisted testing the outer bounds of its treaty-implementing authority. But if ever there was a statute that did test those limits, it would be Section 229. With its shockingly broad definitions, Section 229 federalizes purely local, run-of-the mill criminal conduct. . . . Sweeping statutes like Section 229 are in deep tension with an important structural feature of our Government: The States possess primary authority for defining and enforcing the criminal law.

The Tenth Amendment reserves to the states those powers the Constitution does not vest in the federal government. Yet, the Constitution vests the President with treaty-making powers. And, it authorizes the Congress to enact legislation, necessary and proper to effectuate those powers. Hence the observation in Holland, no constitutional suspicion attends legislation necessary and proper to the implementation of a valid treaty perhaps even should it intrude upon state prerogatives. Mrs. Bond questions whether a statute of the breadth of the chemical weapons provision is constitutionally necessary and proper to implement the treaty, since primary responsibility for criminal law rests with the states.

In the alternative, Mrs. Bond has asked the Court to hold that the federal chemical weapons statute does not apply to her conduct. The question of whether the statute might be sustained under the Commerce Clause is not before the Court.

Date of Report: February 21, 2013
Number of Pages: 9
Order Number: R42968
Price: $19.95

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