Is United States v. Bond Headed Back to the High Court?

In 2010, the Supreme Court unanimously held that Carol Anne Bond had standing to challenge her conviction under the Chemical Weapons Convention Implementation Act of 1998 for trying to poison her husband’s lover. On remand, the U.S. Court of Appeals for the Third Circuit rejected her constitutional challenge to the Act for exceeding the scope of the treaty power. According to the court’s opinion, this was a result largely dictated by Missouri v. Holland. Here is the summary provided in the introduction to the court’s opinion.

This case is before us on remand from the Supreme Court, which vacated our earlier judgment that Appellant Carol Anne Bond lacked standing to challenge, on Tenth Amendment grounds, her conviction under the penal provision of the Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. § 229 (the “Act”), which implements the 1993 Chemical Weapons Convention, 32 I.L.M. 800 (1993) (the “Convention”). The Supreme Court determined that Bond does have standing to advance that challenge, and returned the case to us to consider her constitutional argument.

In her merits argument, Bond urges us to set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Cognizant of the widening scope of issues taken up in international agreements, as well as the renewed vigor with which principles of federalism have been employed by the Supreme Court in scrutinizing assertions of federal authority, we agree with Bond that treaty-implementing legislation ought not, by virtue of that status alone, stand immune from scrutiny under principles of federalism. However, because the Convention is an international agreement with a subject matter that lies at the core of the Treaty Power and because Holland instructs that “there can be no dispute about the validity of [a] statute” that implements a valid treaty, 252 U.S. at 432, we will affirm Bond‟s conviction.

Although the panel was unanimous, the case produced three opinions — an opinion for the court by Judge Jordan and concurrences by Judges Rendell and Ambro, the latter of which expressly urges the Supreme Court to take up the case to provide further guidance on the proper interpretation of Missouri v. Holland. As Judge Ambro concludes his opinion:

Since Holland, Congress has largely resisted testing the outer bounds of its treaty-implementing authority. . . . But if ever there were a statute that did test those limits, it would be Section 229. With its shockingly broad definitions, Section 229 federalizes purely local, runof-the-mill criminal conduct. The statute is a troublesome example of the Federal Government‟s appetite for criminal lawmaking. 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.”

I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” Nicholas Quinn Rosenkranz, Executing The Treaty Power, 118 Harv. L. Rev. 1867, 1868 (2005), and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.