The Case of the Poisoned Mailbox

A love triangle has become a Supreme Court test of state versus federal authority.

, The National Law Journal

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Solicitor General Donald Verrilli, Jr.

On June 8, 2007, postal inspectors arrested Bond and charged her with violating the federal Chemical Weapons Convention Implementation Act of 1998 and mail theft. Her motions to dismiss the chemical-weapons charges on the ground that the act exceeded Congress' powers were rejected. The federal court sentenced her to six years in prison and five years of supervised release.

Bond won her first round in the U.S. Supreme Court in 2011. The justices held that she had standing to bring her constitutional challenge to the convention implementation act. But on remand to the U.S. Court of Appeals for the Third Circuit, the appellate court rejected that challenge, relying on the justices' 1920 decision in Missouri v. Holland.

FEDERALIST PRINCIPLES

Holland, the appellate court said, held that "principles of federalism will ordinarily impose no limitation on Congress's ability to write laws supporting treaties, because the only relevant question is whether the underlying treaty is valid." It added that "the arguable consequence of Holland is that treaties and associated legislation are simply not subject to Tenth Amendment scrutiny, no matter how far into the realm of states' rights the President and Congress may choose to venture."

At Bond's side once again in the Supreme Court is former Bush Solicitor General Paul Clement of Bancroft. His likely opponent will be Obama Solicitor General Donald Verrilli Jr.

Clement argues that the Constitution contains structural limits defining the roles and powers of the three branches of government and between the federal and state governments. One is the 10th Amendment, which reserves certain powers to the states. Although the high court has recognized Congress' broad power to implement treaties, he wrote in his brief, "it has constantly insisted that the police power was reserved to the States. That point is fundamental."

Clement argues the court can avoid a constitutional confrontation by interpreting the act to apply only to conduct that the Chemical Weapons Convention itself addresses: warlike conduct that would violate the convention if done by a signatory state. "Domestic disputes culminating in a thumb burn neither implicate the concerns of the Chemical Weapons Convention nor come within Congress' authority," he says. If Holland does eliminate "bedrock principles of federalism," he says, it should be overruled.

"Holland is a foundational case," said David Strauss of the University of Chi­cago Law School. "To overrule it would be a very big deal."

The government begins its brief by telling the court that Bond's actions were not minor. She attempted to ­poison Haynes with chemicals "at least 24 times" and in sufficient quantities to be potentially lethal. Congress had authority to prohibit Bond's conduct under its commerce clause and treaty powers, coupled with the necessary-and-proper clause, the government argues.

"The federal prohibition on malicious use of toxic chemicals is within Con­gress's authority to regulate activities that substantially affect interstate commerce as part of a comprehensive regime regulating commercial activity," Verrilli argues. And Clement's attempt to carve out "local conduct" from the scope of Congress' treaty power, he adds, echoes arguments made and rejected since the founding, and "would hamstring U.S. treaty negotiators and undermine global confidence in the United States as a reliable treaty partner, to the detriment of the foreign policy and national security of the United States."

The Holland decision should not be overruled, he says, arguing it "has not disrupted the federal-state balance established by the Framers, which is protected by structural safeguards on the Treaty Power, such as the requirement that treaties be approved by two-thirds of the Senate. Congress has not exercised a general police power under the guise of implementing a treaty despite [Bond's] hypothetical parade of horribles."

The justices might vote narrowly to avoid a constitutional confrontation, said Pratik Shah, co-leader of the Supreme Court practice at Akin Gump Strauss Hauer & Feld. "The court can be creative in avoiding constitutional rulings."

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