11/14/2010

Jonathan Greenberg

The Supreme Court recently added Bond v. United States to its docket.  The fundamental issue in this case is whether a private citizen has standing to challenge the constitutionality of a federal law on the grounds that said federal law impermissibly abrogates the powers of State government in contravention of the 10th Amendment.  Based on the important issues of federalism raised in Bond's appeal, as well as the colorful facts underlying the case, the Court's ultimate decision will be one to watch for.

The appellant in Bond was accused of attempting to kill her pregnant best friend after discovering that the father of the child was Bond's husband.  While revenge plots fueled by infidelity are perhaps not the most uncommon thing in the world, Bond's chosen method was particularly novel.  Bond was a trained microbiologist and stole from her workplace 10-chloro-10H-phenoxarsine, a toxic chemical capable of causing significant harm merely through topical application; half of teaspoon is lethal to adults.  Bond repeatedly applied the chemical to the victim's mailbox, doorknob, and car door in an attempt to injure her, and was only caught after the victim arranged for hidden cameras to be set up.
 
Bond was charged with two counts of possessing and using a chemical weapon, in violation of 18 U.S.C. § 229(a)(1), a criminal statute that implemented  US treaty obligations under the 1993 Chemical Weapons Convention.  The thrust of Bond's appeal is that her crime was essentially a local matter not meant to fall within the scope of the treaty or any laws implemented to enforce the treaty, and as such federal prosecution amounted to an unconstitutional intrusion into the police power of local State governance.   Bond emphasized that certain compounds made from items found in convenience stores could subject a citizen to federal prosecution under this chemical weapon statute designed to stop the proliferation of chemical weaponry.
The 3rd Circuit, No. 08-2677, upheld Bond's conviction and found that she did not have standing to challenge the federal law.  The court primarily relied on Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939) in reaching its holding, a case in which various Tennessee utility companies were found to not have standing to challenge New Deal legislation on 10th Amendment grounds.  The 3rd Circuit further emphasized that there was no showing that Bond's interests were even aligned with Pennsylvania's interests.  However, the court noted a progression of cases decided since Tennessee relaxing various facets of standing requirements.  Accordingly, a Supreme Court opinion revisiting Tennessee Electric and the right of individual citizens to challenge federal criminal legislation could potentially have a broad impact on the federal government's ability to criminalize individual local and domestic conduct pursuant to its international treaty obligations.