SCOTUS Takes on Domestic Dispute Turn Treaty Violation

High Court will Determine Whether Assault Can be Prosecuted Under Federal Treaty

The U.S. Supreme Court will hear the bizarre federal prosecution of Carol Anne Bond who tried to poison her husband's mistress with chemicals she stole from work.

Bond's victim complained to local law enforcement officials who refused to follow through on her complaints. Finally, the U.S. Attorney pursued the case as a violation of a 1993 chemical weapons treaty. Bond was convicted and sentenced to six years in prison.

The case made its way to the Supreme Court and took an unusual twist. The Obama Administration determined that the U.S. Attorney took action in the case without authorization of the justice department. As a result the justice department agreed with Bond's position on appeal.

The case did not end there. The High Court appointed an attorney to argue a position opposed to Bond. According to National Public Radio (NPR), that lawyer is Stephen McAllister, a former Supreme Court law clerk. McAllister will argue that the 10th Amendment delineates what he calls "a structural right — a right that, if it belongs to anyone, it belongs to the states." Thus, McAllister argues, Bond cannot bring her 10th Amendment claim as an individual. A state or state official would have to bring it.

Not so, counters former Bush administration Solicitor General Paul Clement, who will represent Bond in the Supreme Court.

"In a criminal case, it ought to be just a fundamental principle that you have a right to object to the constitutionality of the statute under which you're being prosecuted," said Clement as quoted on NPR.

He asserts that Congress never intended to cover "domestic disputes" under a law enacted to implement the chemical weapons treaty.

Otherwise, he says, something as simple as a fight over a parking spot could turn into a federal case as soon as one of the participants gets angry enough "to throw bleach" or "use some other household chemical on [the other's] car in a malicious way."

But McAllister says a statute like this one, enacted under the federal government's treaty power, cannot be foiled by states' rights claims. He says that if Bond is right and the statute is invalid, then many terrorists would also be immune from federal prosecution.

For example, McAllister as quoted on NPR, "What about some fellow who's sitting at home and makes the chemicals and then puts them in the mail to the justices of the Supreme Court, a la the anthrax scare?"

Congress wrote this law broadly, McAllister argues, precisely because line-drawing is so difficult.

To read more: http://www.npr.org/2011/02/22/133946067/constitutional-questions-arise-in-chemicals-case