The Supreme Court Takes on the Toxic Avenger

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Carol Anne Bond was convicted of trying to poison her husband's lover. Now she's a symbol of government overreach. Roberto Westbrook/Spaces Images/Corbis

Her name’s Bond. Carol Bond. She has no license to kill. On the contrary: She was caught and convicted of attempting to burn her husband’s lover with toxic chemicals. And there the story may have ended, a tawdry act of violent vengeance culminating in a prison sentence.

Instead, the jealous Pennsylvania woman has become an unlikely protagonist in a landmark legal case taken up by conservatives to prove that in prosecuting her, the federal government overreached its constitutional powers. Now Carol Anne Bond’s case is headed for the Supreme Court, the latest round in the ongoing battle between big government and states’ rights.

“It’s a constitutional dispute wrapped up in a sad soap opera,” said Elizabeth Wydra, chief counsel at the liberal Constitution Accountability Center. But the melodrama belies the importance of the issues at stake: The case of Bond v. United States could tip the scales in the right-left struggle over the role of government.

When Bond learned that her best friend was having an affair with her husband and was pregnant by him, she began to suffer from what a psychiatrist would later call an “intense level of anxiety and depression.” She plotted her revenge.

At first, she engaged in garden-variety revenge schemes, sending her friend, Myrlinda Haynes, defaced pictures of her and threatening her over the phone. “I’m going to make your life a living hell” and “Dead people will visit you,” she told Haynes. Bond’s antics landed her a harassment conviction in state court in 2005. But rather than back off, she took her plot to a whole new level.

Bond, a microbiologist from Lansdale, Pennsylvania, settled on a new plan using the weapon she knew best: chemicals. On Amazon she bought some potassium dichromate, a toxic soup used in printing photographs. From her employer she stole a bottle of highly poisonous 10-chlorophenoxarsine, which contains arsenic. Both noxious substances burn the skin when touched and, if swallowed, are lethal even in small quantities.

Between late 2006 and early 2007, Bond made at least 24 trips to the home of her husband’s lover, smearing the chemicals on places where she’d be sure to burn her hands, like the handle of Haynes’s car door. If Haynes were to ingest the liquid, she would become severely ill or even die. The chemicals also threatened the life of Haynes and Clifford Bond’s daughter, now two years old.

However, Bond’s plan was poorly carried out. Potassium dichromate is bright orange, and only once did the chemicals burn Haynes, on her thumb. Haynes notified the local police, who proved to be of little help, suggesting the powder might be cocaine and advising her to wash her car more often. But when Haynes discovered the same toxic concoction on her mailbox, the postal service set up surveillance cameras and caught Bond red-handed.

Federal prosecutors charged Bond under the Chemical Weapons Convention Implementation Act, which Congress passed in 1998 to implement the Chemical Weapons Convention, an international treaty. For attempting to maim her friend and endangering the life of her young daughter, Bond received six years in prison and more than $10,000 in fines and restitution. She was found guilty on two counts of using a chemical weapon as well as two counts of mail theft.

But that was not the end of the matter. Bond’s case caught the attention of a group of conservative lawyers, who saw in her shabby act of domestic vengeance a chance to further an agenda centuries in the making. In November, when the Supreme Court hears her case, Bond will become a footnote in an ideological war over the power of the federal government that dates back to the nation’s founding. 

Bond’s case raises the pivotal constitutional question of what the federal government is legally permitted to do when implementing a treaty, testing whether the government can exercise its powers under the “necessary and proper” clause of the Constitution. That clause lets Congress pass laws deemed “necessary and proper” to carry out the government’s other powers, such as making international treaties.

Driven by their small-government philosophy, Bond’s lawyers contend that the 1998 law infringes on the police powers of the states, and that no treaty allows the U.S. government to make a federal issue out of a case of poisoning. In other words, the government used its authority to implement treaties as a loophole to expand its powers into local affairs beyond what the Constitution permits. The government’s lawyers counter that since the federal government has the power to implement treaties, the law is constitutional.

It’s not hard to grasp that a government’s ability to enter into and carry out treaties is vital to international order. Constitutional scholar Garrett Epps notes that the power to enforce the terms of a treaty was a top priority when the Founders gathered to scrap the Articles of Confederation and draft the Constitution. Shortly after the American Revolution, states refused to honor provisions of the peace treaty with Britain that allowed British subjects to retake property and receive debt payments from before the war – an area generally reserved to the states. 

The issue was so contentious that at one stage another war seemed in the cards. If, when judging the Bond case, the Supreme Court decides to strike down the government’s ability to implement treaties, said Epps, it would be a “serious assault on the government’s national relations power.”

Paul Clement, the attorney representing the 26 states challenging the Patient Protection and Affordable Care Act, speaks with the press. T.J. Kirkpatrick/Corbis

Court-watchers think Bond should be optimistic about her chances before the Supreme Court, thanks largely to a case that on the surface seems entirely unrelated: the judgment delivered in June last year on the constitutionality of the Affordable Care Act.

Paul Clement, who is representing Bond, is a superstar of the conservative legal movement. Since 2000 he’s argued more cases before the Supreme Court than any other lawyer. In the past few years, he’s gone to bat for the biggest Republican causes, including, most important for Bond, the unsuccessful challenge to Obamacare.

The Obama administration beat back the conservative challenge to the introduction of universal health care when the Supremes upheld the individual mandate in the health care law. But Clement didn’t exactly lose, either. He successfully argued that the “necessary and proper” clause did not give Congress the authority to compel everyone to buy health insurance. The court agreed, but allowed the mandate to continue under Congress’s legal power to tax.

The slim conservative majority on the Court could work in Clement’s favor: 

“There are five justices on the Supreme Court who want to limit the scope of Congress’s power,” said Erwin Chemerinsky, dean of the UC Irvine School of Law. “We saw that most recently in the Affordable Care Act case.”

Bond’s case is a sequel to that one, with Clement returning to the Court to finish what he started by further eroding Congress’s power – a power that applies not only to treaties but also to virtually every aspect of domestic life.

A crippled “necessary and proper” clause would open up all sorts of government programs and regulations to constitutional challenge. “Groups that want less government and fewer regulatory protections would use this as a tool to achieve those goals,” said Wydra. “What’s interesting about this case is seeing if there is a conservative majority on the Court that is willing to take a radical step in the direction of limiting the federal government’s power under the Constitution.”

For conservatives and libertarians, the Bond case is about bringing federal power to heel by achieving a narrower reading by the Court of the government’s constitutional powers. “This goes to the first principles of federalism,” said Randy Barnett, a professor at the Georgetown University Law Center and one of the lawyers who worked with Clement on the health care case. “The linchpin here is the ‘necessary and proper’ clause.”

A number of groups who want to strictly limit the powers of the federal government are taking part in the Bond case by filing “friend of the court” briefs, including the Downsize DC Foundation, the Tenth Amendment Center, the Goldwater Institute, and the Cato Institute.

The fact that the high court agreed to take Bond’s case in the first place, even though the Third Circuit Court of Appeals ruled against Bond, has liberals nervous about the outcome. “The Roberts court in general is very interested in issues of federalism,” Wydra said. Even a narrow ruling against limiting the “necessary and proper” clause would invite further litigation on the issue and further erosion of the government’s power. That’s what the health care case did. 

“The fact that there seems to be five votes on the court for something like the Affordable Care Act not being authorized by the ‘necessary and proper’ clause, I think, emboldened conservatives and critics of federal power to bring claims like the one they’re bringing in Bond,” Wydra said. Clement relies heavily on the health care case in his brief to the court. 

Bond may turn out to be a conservative and libertarian heroine, but she won’t be off the hook for her crimes – even if the Supreme Court rules in her favor, she could still be prosecuted in state court.

But it’s not all about her. “Think about human-rights treaties and international environmental treaties, and you can see that the implications of this are pretty serious,” Epps said. “Nobody cares if Bond goes free, poor crazy woman.”

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