On Liberty
The Soap Opera of Liberty
Americans are taught from a young age that our government is one of limited powers. Congress cannot simply pass any law that it wishes: The Constitution prescribes limits on its lawmaking powers. Or does it? In Bond v. United States, the Supreme Court of the United States will consider whether exercise of the Treaty Power can increase Congress’s legislative powers. In other words, may Congress, through treaties, reach ends that are otherwise outside its constitutional authority? If the Court answers that question in the affirmative, the authority of the federal government could be limitless.
BOND v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 09–1227. Argued February 22, 2011—Decided June 16, 2011 When petitioner Bond discovered that her close friend was pregnant by Bond’s husband, she began harassing the woman. The woman suffered a minor burn after Bond put caustic substances on objects the woman was likely to touch. Bond was indicted for violating 18 U. S. C. §229, which forbids knowing possession or use, for nonpeaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” §§229(a); 229F(1); (7); (8), and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States. The District Court denied Bond’s motion to dismiss the §229 charges on the ground that the statute exceeded Congress’ constitutional authority to enact. She entered a conditional guilty plea, reserving the right to appeal the ruling on the statute’s validity. She did just that, renewing her Tenth Amendment claim. The Third Circuit, however, accepted the Government’s position that she lacked standing. The Government has since changed its view on Bond’s standing. Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States. Pp. 3–14. (a) The Third Circuit relied on a single sentence in Tennessee Elec. Power Co. v. TVA, 306 U. S. 118. Pp. 3–8. (1) The Court has disapproved of Tennessee Electric as authoritative for purposes of Article III’s case-or-controversy requirement. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152–154. Here, Article III’s standing requirement had no bearing on Bond’s capacity to assert defenses in the District Court. And Article III’s prerequisites are met with regard to her standing to appeal. Pp. 3–5
Scalia, joined by Thomas, also concludes that the treaty power does not give Congress the authority to enact implementing statutes that go beyond the scope of Congress’ other enumerated powers under Article I. In a separate concurring opinion, Justice Thomas, joined by Scalia and Alito, argues that Section 229 is unconstitutional because the the treaty power only extends to treaties addressing “matters of international intercourse,” but does not cover “matters of purely domestic regulation” such as Bond’s conduct.Constitutional Law as Soap Opera Bond v United States
In recent days, conservatives have been sounding the alarm over Bond v. United States, a case that my colleagueElizabeth Wydra has described as “a constitutional dispute wrapped in a sad soap opera” – with an extramarital affair, a child born out of wedlock, and a spurned spouse seeking revenge.
After placing toxic chemicals on various surfaces on or around the home of her husband’s mistress, Carol Anne Bond was prosecuted and convicted under a federal law passed to implement an international chemical weapons treaty. Ms. Bond’s case is scheduled for argument before the Supreme Court tomorrow, with her side being pressed by conservative super-lawyer Paul Clement.
Colorful facts aside, in the conservatives’ rendering of Bond, the very fabric of the Republic is at stake. George Will has called it the Term’s “most momentous case,” arguing that the Roberts Court must step in to check a “government run amok.” The Heritage Foundation warns that the case challenges a key lesson that “Americans are taught from a young age” – that “our government is a government of limited powers.”
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