February 7, 2014

The Threat to U.S. Federalism and Foreign Relations that Surprised Everyone

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By Kevin L. Cope*

Bond v. United States, a Supreme Court case due for decision this spring, has it all: a jilted lover, an impregnated best friend, a mailbox covered in bright orange powder, and a global disarmament treaty.  No doubt, the soap-opera-esque facts of Bond are bizarre.  But what really makes Bond’s story unusual is that the whole premise of the case – which could transform U.S. federalism and foreign relations – apparently came as a shock to nearly everyone, including those most responsible for the challenged law. 

The root of the case is the 1993 Chemical Weapons Convention (CWC), a now-190-member treaty aimed at stopping the development, stockpiling, and deployment of chemical weapons of mass destruction.  (The CWC recently made other news when Syria was pressured into joining last October.)  The United States ratified it in 1997, and Congress enacted the CWC Implementation Act a year later. Among other things, state parties to the CWC are required to prohibit the development and use of chemical weapons, a term defined quite broadly. By largely cutting-and-pasting from the CWC’s pertinent provisions, the CWC Implementation Act does just that.

In fact, it may have done it too well.  

In 2007, a 42-year-old Lansdale, Pennsylvania, woman named Carol Anne Bond rubbed two abrasive chemicals (one which she took from her workplace, the other which she ordered on Amazon.com, available here) on the mailbox and car door of her neighbor, Myrlinda Haynes.  Bond had recently learned that Haynes was pregnant — and that Bond’s husband was the father.  On one occasion, some chemicals rubbed off on Haynes’s hand.  Before she could wash it, she suffered a minor thumb burn.  When Haynes told the police, local officials declined to pursue it.  The whole incident might have ended there, but because a mailbox was involved, eventually so was the U.S. Postal Service.  To the shock of most everyone but the prosecutors involved, the U.S. Attorney’s Office in Philadelphia charged Bond under the CWC Implementation Act.  Under the law, Bond faced a possible sentence of life in prison. 

The question before the Court is whether the Necessary and Proper Clause of the U.S. Constitution and Missouri v. Holland allow treaty-implementing acts to be applied this way, that is, to penalize “local” conduct quintessentially within the states’ police powers.  The parties, amici, and commentators generally agree that the case could meaningfully impact federalism doctrine and/or U.S. foreign relations. Petitioner Bond and other supporters of a limited federal lawmaking role argue that allowing this result would allow the federal government to use treaties as a pretext to regulate in areas of traditional state responsibility. Bond and amici imply this power could be used to bypass traditional federalism safeguards, allowing an alliance of the Senate, the President, and one foreign nation to, for instance, force states to abolish the death penalty, or require nationwide same-sex marriage. 

Critics, such as University of Chicago law professor Eric Posner, mock that notion, saying that the states’ Senate representation has proven ample protection from treaty-based threats to federalism. The government and several amici argue that the Constitution, international law, and/or foreign relations considerations demand that the government have the authority to prosecute the likes of Ms. Bond.  The government insists that if local acts like Bond’s were outside Congress’s reach to criminalize, it “would hamstring U.S. treaty negotiators” and “undermine global confidence in the United States as a reliable treaty partner,” jeopardizing U.S. foreign policy and national security.

Typically, when bills of questionable constitutionality are before Congress, it’s understood that the law is a federal case waiting to happen.  Congress relies on executive officials and its own legal staff to anticipate the courts’ view of the statute, an exercise which often helps to shape the final legislative product. But with Bond, the serious concerns mentioned above apparently concerned no one until Bond’s attorneys raised them before a Pennsylvania federal district court in 2007.  Despite the glut of lawyers and legal expertise in Congress, the State Department, and the Justice Department, none apparently saw it coming.  During the Implementation Act’s congressional hearings and debate, there was no hint of the Act’s possible application to minor, garden-variety assaults – nor any concerns expressed about federalism – by the numerous executive officials, members of Congress, and legal experts who weighed in.

What explains this oversight?  As a potential threat to federalism, it turns out the CWC is sort of a wolf in sheep’s clothing.  Congress is usually attentive to the federalism implications of multi-lateral treaties; consider the resistance faced by agreements like the International Convention on Civil and Political Rights, the WTO Agreement on Government Procurement, and the Convention on the Rights of the Child. Some of those treaties require state parties to regulate conduct within the traditional purview of U.S. states, e.g., child neglect, criminal punishment, and state-government procurement.  The CWC also requires its members to prohibit certain conduct by their citizens.  But that conduct is qualitatively different, because it involves quintessential national and international concerns: developing, stockpiling, and using chemical weapons.  It’s easy to see why no one foresaw the Chemical Weapons Convention’s applying to a thumb burn spawned by a Lansdale neighbors’ love triangle. 

If this case  with its important implications for foreign affairs and federalism – has taken its creators by surprise, why does its unusual origin matter to anyone (besides Carol Bond)?  It matters because it shows how translating international law into domestic law can produce unforeseen, usually unintended consequences.

Here, the consequence, in the Third Circuit’s words, is a law that “turns each kitchen cupboard and cleaning cabinet in America into a potential chemical weapons cache.”  Another consequence is a criminal regime that punishes routine, misdemeanor batterers like terrorists and illegal arms dealers. Given the expanding scope of issues being addressed with multilateral treaties, such unintended applications of international-turned-domestic law could one day become commonplace. 

That’s not an inevitable result.  Regardless of the Implementation Act’s constitutionality, cutting and pasting from the CWC wasn’t Congress’s only option to uphold the country’s international commitments.  Had State Department officials or members of Congress anticipated prosecutors’ using the CWC on people like Carol Bond, Congress might have explored other ways to fulfill the United States’ obligation to prohibit non-peaceful chemical uses.  For example, Congress could have relied on existing U.S. state criminal regimes to cover uses of chemicals (as in Bond) that have nothing to do with warfare, disarmament, or weapons of mass destruction, the explicit concerns of the CWC.   Or it might have created a multi-tiered sentencing scheme, in which minor assaults were recognized and punished as such.  That it did not, and that Bond has taken so many by surprise, underscore the challenges and pitfalls of converting international law into domestic law in a federal system.




[*] Kevin Cope is a Visiting Associate Professor of Law at Georgetown. His research and teaching interests include international institutions and the nexus of domestic and international law.  

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