Constitutional Questions Arise In Chemicals Case

She might be called "Chemical Carol." Carol Anne Bond, a 41-year-old Pennsylvania woman, tried to poison her husband's mistress with chemicals she stole from work. The federal government then charged her with violating U.S. laws enacted to implement a global chemical weapons treaty.

On Tuesday, Bond's case will come before the Supreme Court to test important constitutional questions.

The facts in the case could come straight out of a soap opera. In 2005, Bond was a Philadelphia suburbanite living with her husband of 14 years. When she found out that her best friend, Myrlinda Haynes, was pregnant, she was at first delighted. But delight turned to rage when she discovered that her own husband was the father.

According to her lawyers, Bond suffered an emotional breakdown and became fixated on punishing Haynes for her betrayal. She began phoning and writing the mistress with verbal and visual threats. In 2005, Bond pleaded guilty to a petty harassment charge in state court and was fined $100. But she soon turned to more serious tactics.

Over the next eight months, Bond stole toxic chemicals from her employer, a chemical manufacturing company. She spread them on Haynes' mail, mailbox, front doorknob, car door and other surfaces. Bond apparently didn't do a very good job of it because Haynes noticed the chemicals and avoided any injury except a burn on the thumb.

Haynes repeatedly complained to local police, who failed to take action. Eventually, though, Haynes' mail carrier came to the rescue, alerting federal postal inspectors. They videotaped Bond repeatedly stealing mail and spreading the chemicals.

The federal government prosecuted Bond for violating U.S. laws enacted to carry out the 1993 Chemical Weapons Convention, a global treaty signed by the United States. The government also sought an enhanced punishment, and Bond was sentenced to six years in prison.

Challenging The Federal Law

On appeal, Bond cited the 10th Amendment to the Constitution — a Tea Party favorite because it highlights states' rights. It says that "the powers not delegated to the United States by the Constitution ... are reserved to the States respectively, or to the people."

Congress, Bond argued, exceeded its authority by using a chemical weapons treaty to criminalize the kind of activity routinely dealt with under state law. In short, she maintained that the federal government had treated a simple assault as if it were a terrorist attack.

Indeed, the federal chemical weapons law carried far greater punishment. If Bond had faced state instead of federal charges, she would likely have been subject to three months to two years in prison, rather than six years.

A federal appeals court, however, ducked the constitutional question, ruling instead that Bond had no legal standing to challenge the constitutionality of the federal chemical weapons law.

When the case reached the Supreme Court, however, it took another twist. Senior Justice Department lawyers learned for the first time that federal prosecutors, at the request of the appeals court, had taken the position that Bond had no right to challenge the constitutionality of the law that she was convicted of violating. According to Justice Department sources, that was not a position that the solicitor general's office knew about or later wanted to defend. And so the Obama administration reversed course, in part. While staunchly defending the constitutionality of the chemical weapons law, the government now agreed with Bond that she had the right to challenge it.

A Legal Twist

Usually, when the government "confesses error" like this on a key legal point, the case is over, but not this time.

Instead, with nobody left to oppose Bond on the question of her legal standing, the Supreme Court appointed another lawyer to defend the lower court ruling.

That lawyer is Stephen McAllister, a former Supreme Court law clerk. On Tuesday, McAllister will argue that the 10th Amendment delineates what he calls "a structural right — a right that, if it belongs to anyone, it belongs to the states." Thus, McAllister argues, Bond cannot bring her 10th Amendment claim as an individual. A state or state official would have to bring it.

Not so, counters former Bush administration Solicitor General Paul Clement, who will represent Bond in the Supreme Court.

"In a criminal case, it ought to be just a fundamental principle that you have a right to object to the constitutionality of the statute under which you're being prosecuted," Clement says.

He asserts that Congress never intended to cover "domestic disputes" under a law enacted to implement the chemical weapons treaty.

Otherwise, he says, something as simple as a fight over a parking spot could turn into a federal case as soon as one of the participants gets angry enough "to throw bleach" or "use some other household chemical on [the other's] car in a malicious way."

But McAllister says a statute like this one, enacted under the federal government's treaty power, cannot be foiled by states' rights claims. He says that if Bond is right and the statute is invalid, then many terrorists would also be immune from federal prosecution.

For example, McAllister posits, "What about some fellow who's sitting at home and makes the chemicals and then puts them in the mail to the justices of the Supreme Court, a la the anthrax scare?"

Congress wrote this law broadly, McAllister argues, precisely because line-drawing is so difficult.

A decision in the case is expected by summer.

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