By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.
In 1997, the United States Senate ratified the Chemical Weapons Convention, an international treaty that outlaws the production, stockpiling, and use of chemical weapons. As a signatory to that treaty, the United States agreed also to criminalize private individuals' production, stockpiling, and use of chemical weapons. Accordingly, Congress enacted legislation that made it illegal for any person knowingly to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon."
Thankfully, the United States has had few occasions to bring chemical-weapons charges under this law. One such prosecution, though, is currently before the United States Supreme Court, which will hear oral argument today in Bond v. United States.
The defendant in that case, Carol Anne Bond, was a microbiologist who had been married for several years but couldn't bear a child. When Ms. Bond's best friend announced that she was pregnant, Ms. Bond was excited. When Ms. Bond discovered that her husband was the child's father, though, her mood understandably soured. She vowed to get revenge against her one-time best friend and tried, at least 24 times, to poison her with lethal chemicals that she stole from work and ordered online.
Ms. Bond was ultimately charged with possessing and using a chemical weapon, in violation of the criminal statute that implemented the United States' treaty obligations under the Chemical Weapons Convention. At the district court, Ms. Bond unsuccessfully argued that when Congress passed this statute, it exceeded its powers under the Constitution. The district court rejected that argument, but Ms. Bond continued to pursue it on appeal.
Ms. Bond's position makes intuitive sense: The Tenth Amendment expressly provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." And, unlike other federal statutes that address assaults, the law under which Ms. Bond was prosecuted includes no requirement that the alleged assault occur within the special jurisdiction of the United States, that the assault have an effect on interstate commerce, that the victim be a person or institution with recognized federal status, or that some other federal interest be involved. It also includes no requirement that the government prove a federal interest as an element of the offense. As such, the law criminalizes conduct with very little connection to a legitimate federal interest.