Posted by: captainfalcon | October 12, 2010

The Long Arm of the USPS

David Kopel flags a multiply interesting Tenth Amendment case – United States v. Carol Anne Bond, 581 F.3d 128 (3d Cir. 2009) – that will be heard by the Supreme Court later this term. Both the facts and law are excellent. I will address each in sequence, but, to preview the law, at issue is the standing question whether private individuals may raise Tenth Amendment challenges to federal statutes, and the merits question whether it is against the Tenth Amendment to apply, to an intimate local crime, a federal law enacted to enforce a treaty for the elimination of chemical weapons. Now the facts:

Myrlinda Haynes aroused Carol Anne Bond’s jealously by permitting Mr. Bond to impregnate her. As a result Mrs. Bond, a biologist, spent the next few months trying to poison Haynes with various compounds she stole from work and bought off the Internet. She made a habit of smearing 10-chloro-10H-phenoxarsine, which is toxic to the touch, on Haynes’s doorknob and mailbox. After the local police proved ineffectual, Haynes sought assistance from the United States Postal Inspection Service. Their sting operation caught Bond installing potassium dichromate inside Haynes’s car muffler, whereupon “[p]ostal inspectors arrested Bond and took her to a holding cell in the Philadelphia Post Office.” Bond, 581 F.3d at 132.

Bond was subsequently convicted, inter alia, of violating 18 U.S.C Sec. 229(a)(1). That law, enacted to implement the United States treaty obligations under the 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction, makes it a crime “to develop, produce…use….any chemical weapon.” The Chemical Weapons Convention requires each signing nation to “in accordance with its constitutional process, adopt the necessary measures to…[p]rohibit natural and legal persons anywhere on its territory [from developing chemical weapons].” 32. I.L.M. 800 (1993).

At trial and on appeal, Bond argued that Sec. 229(a)(1), at least as applied to her, is an unconstitutional exercise of federal power in violation of the Tenth Amendment’s guarantee that “The 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.” U.S. Const. amend. X. The argument, as reported by the Court of Appeals, is that Sec. 229 is unconstitutional because (1) it does not require that the conduct it regulates (development of a chemical weapon) affects a federal interest (e.g. interstate commerce), nor (2) does it “state…a basis for its enactment beyond the Chemical Weapons Convention ( i.e., it does not assert authority under the Commerce Clause or other constitutional provision).” Bond, 581 F.3d at 134. (It is not clear to me whether these two alleged failures are supposed to be constitutive or merely probative of 229(a)(1)’s unconstitutionality.)

The Government’s reply is that Congress has authority to enact Sec. 229 because it is necessary and proper to the enforcement of its Treaty Power. U.S. Const. art. I, Sec. 8. It argues that, where done pursuant to a law implementing a treaty, the regulation of purely intrastate activity need not be the exercise of a specific power given to Congress, nor need the intrastate activity affect a federal interest. It proffers Missouri v. Holland, 252 U.S. 416 (1920) as justification:  “It is obvious that there may be matters of the sharpest exigency for the national well being that an act of Congress could not deal with but that a treaty followed by such an act could.” Id., at 135 (quoting Holland, 252 U.S. at 433). In other words, if an otherwise unconstitutional exercise of federal power is necessary and proper to ensure compliance with a valid treaty then the regulation can be permissible.

All of this is quite interesting, but the Court of Appeals never reached the merits. It held, instead, that “[a] private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.” Bond, 581 F.3d at 137. It found itself constrained to the proposition that private parties may not raise Tenth Amendment challenges by a 1939 Supreme Court decision, which held that “The sale of government property in competition with others is not a violation of the Tenth Amendment…[I]f this were not so, the [private utility companies], absent the states or their officers, have no standing in this suite to raise any question under the [Tenth] [A]mendment.” Bond, 581 F.3d at 136 (emphasis added) (quoting Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939)).

The Supreme Court has granted certiorari in this case because two other circuits – the Seventh and the Eleventh – have come to the contrary conclusion, based, if the Bond Court is to be believed, largely on the Supreme Court’s subsequent observation that “The Constitution divides authority between federal and state governments  for the protection of individuals.” New York v. United States, 505 U.S. 144, 181-182 (1992) (emphasis added) (having something to do with Federal regulation of low level radioactive waste dumps). The Third Circuit had methodological reasons, themselves rooted in stare decisis, for following Tennessee Electric Power Co. instead of New York. “If a precedent of [the Supreme] Court has directed application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” Bond, 581 F.3d at 137 (quoting Rodriguez de Quijas v. Shearson, 490 U.S. 477, 484 (1989).

I’m not familiar enough with the law to weigh in on the merits of the Third Circuit’s decision. That said, there does seem something over-broad about the application of a law, whose purpose is to implement a treaty designed to solve a problem of international security, to a woman trying to poison her rival in love.

In any event, it is a cert. grant to watch, as they say.



  1. […] CF’s lethal legal love triangle, I wonder how one defines a chemical weapon.  I fully recognize that this is not the […]

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