STEVE INSKEEP, HOST:
It's MORNING EDITION, from NPR News. I'm Steve Inskeep.
RENEE MONTAGNE, HOST:
And I'm Renee Montagne. The U.S. Supreme Court hears arguments today in a case that sounds like an episode of "Law and Order," or maybe "Days of Our Lives." But it's a case that could ultimately limit the power of the president and the Congress to enact and enforce international treaties. As NPR legal affairs correspondent Nina Totenberg reports, the global implications begin with a love triangle.
NINA TOTENBERG, BYLINE: In 2005, Carol Anne Bond was a 34-year-old Philadelphia suburbanite, living with her husband of 14 years. But when she found out that her best friend was pregnant and that her own husband was the father, Bond was enraged. She began phoning and writing her former friend, making threats. That got her prosecuted in state court for harassment. Bond pled guilty to that charge but was not deterred, moving on to more dangerous conduct.
Over the next eight months, Bond stole toxic chemicals from the chemical manufacturing company where she worked, and ordered other chemicals over the Internet that are potentially lethal in small amounts. She spread the toxic material on her rival's mail, mailbox, front doorknob, car door and other surfaces. Apparently, Bond didn't do a very good job of it because her target, Myrlinda Haynes, easily spotted the chemicals and avoided any injury except a burned thumb.
Haynes complained more than a dozen times to the local police, but they essentially blew her off, refusing to take any action. Eventually, though, her mail carrier alerted postal inspectors, who videotaped the betrayed wife spreading the chemicals 24 separate times.
So what does this all have to do with a treaty? The federal government prosecuted Bond for violating the 1993 Chemical Weapons Convention, a treaty signed by the United States that bans the unauthorized use or storage of dangerous chemicals. She was sentenced to six years in prison. That sentence was three times longer than she could have received under state law, if the state had chosen to prosecute.
She appealed to the Supreme Court, contending that the treaty enforcement statute enacted by Congress is unconstitutional because it violates states' rights. Former Bush administration solicitor general Paul Clement represents Bond and contends that a simple assault case like this is the state's business to prosecute if it wishes, not the federal government's. The treaty power, he argues, cannot trump the Constitution's structure of limited federal power.
PAUL CLEMENT: If it doesn't involve terrorism or something like that, what Ms. Bond did is the classic office of the state crime of assault. The treaty power doesn't give Congress some new power it didn't have otherwise.
TOTENBERG: The government counters that the treaty power does, indeed, pre-empt states rights and always has. John Bellinger served as legal adviser for the State Department in the George W. Bush administration.
JOHN BELLINGER: One of the key purposes of the Constitution was to give the federal government power not only to enter into treaties, but to compel the states to comply.
TOTENBERG: Bellinger has filed a brief in the Bond case signed by legal advisers who served in administrations, Democratic and Republican, dating back to the 1960s. He notes that one of the reasons the founding fathers wrote the Constitution to replace the Articles of Confederation was that the earlier document allowed the national government to enter into treaties, but not to compel the states to comply.
That made other countries reluctant to make agreements with the United States. The Constitution changed that, says Bellinger, and as far back as the presidency of George Washington and the first Congress, the U.S. has negotiated treaties that trump state laws on all manner of subjects. Paul Clement replies that the countries that negotiated and signed the chemical weapons treaty were not worried about crimes like Ms. Bond's.
BELLINGER: Nation states conduct war. You know, they don't poison their husband's lover.
TOTENBERG: Clement contends that in the context of international norms, Carol Anne Bond's actions were not warlike and therefore, were peaceful for purposes of the treaty.
BELLINGER: And in that context to distinguish peaceful as basically being non-warlike, is actually, I think, an apt use of the phrase.
TOTENBERG: But the government strenuously disagrees, noting that the first ban on chemical weapons - in 1920 - did focus on instruments of war, whereas this treaty was specifically enacted to ban the storage and use of chemical weapons for a variety of purposes. Again, John Bellinger.
BELLINGER: If Ms. Bond 's actions had ended up killing the victim or killing a postal worker or killing the victim's child, I don't think anybody would dispute that this was an appropriate use of this convention.
TOTENBERG: Clement, however, holds firm.
CLEMENT: I think you could tell 100 people on the street what Ms. Bond did here, and a hundred people would not leap to the conclusion that, you know what she did? She deployed a chemical weapon.
TOTENBERG: This is the second trip to the Supreme Court for the Bond case. In 2011, the high court dodged this issue, sending the case back to the lower courts. But this time, Bond and her lawyers are challenging the court's most famous treaty decision, written in 1920 by Justice Oliver Wendell Holmes. That decision said, in essence, that if a treaty is constitutional, so too are the laws that Congress writes to enforce it.
Nina Totenberg, NPR News, Washington.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.