When the Lifetime Channel casts the movie version of Bond v. U.S., it will doubtless pit someone Valerie Bertinelli-ish against someone Judith Light-like and leave all the good 10th Amendment stuff on the cutting room floor. That would be too bad, since the constitutional soap opera underpinning the case may prove to be the most interesting part. Someone in the press gallery this morning at oral argument even suggested the title for the Lifetime movie: The Burning Thumb.
Carol Anne Bond was a microbiologist living in suburban Philadelphia who was delighted to learn that her best friend Myrlinda Haynes was pregnant—delighted, that is, until she discovered that the father of Myrlinda's baby was Bond's husband of 14 years, Clifford. (I'm thinking David Hasselhoff or some other generic '70s baddie). Initially Carol sought her revenge against Myrlinda in standard Lifetime-movie-of-the-week fashion, slashing photos and threatening her over the telephone: "I [am] going to make your life a living hell" and "Dead people will visit you." She also tried to get her best friend fired. The result of all this was a 2005 conviction in state court for Carol Anne Bond for harassment.
And that's around the time Bond made the jump from Lifetime to the Cartoon Network. In a plot likened by Garrett Epps to something cooked up by Wile E. Coyote, Bond next began smearing poisonous chemicals—including an arsenic-based chemical, 10-chloro-10H-phenoxarsine, which she had stolen from her work—on Haynes's car and mailbox. * This happened 24 times between 2005 and 2007, and on one occasion Haynes burned her thumb on the highly dangerous chemicals. When Haynes reported the attacks to her local police, they told her the white powder must be cocaine and suggested she maybe clean her car more often. Luckily for her, her letter carrier leaped into action and alerted the U.S. Postal Inspection Service, which through surveillance and good detective work finally cracked the case. Bond was charged with a violation of 18 U.S.C. § 229, a statute that implements the 1993 Chemical Weapons Convention. She pleaded guilty in federal court and received a six-year sentence and nearly $12,000 in fines and restitution.
Bond's lawyers contend that had her case been filed under state law in a Pennsylvania court, her sentence would have been three to 25 months. The use of a federal chemical weapons treaty to charge her was an impermissible intrusion on state's rights, they say, arguing that 18 USC §229 is unconstitutional under the 10th Amendment, which provides that "[t]he 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."
In case you missed Fashion Week, I am here to tell you that everyone who is anyone will be wearing the 10th Amendment this year. It is, at least for some members of the Tea Party, this season's three-cornered hat, and it's been invoked lately to challenge everything from President Obama's health care legislation to expansive federal criminal laws.
Everything that I have just revealed to you—salacious and constitutional—might have made for a fine cable movie and an even better oral argument. The problem is that the 3rd Circuit eventually ruled that Bond lacked standing to challenge her conviction, finding that only states, not individuals, can bring challenges under the 10th Amendment. So instead of debating the merits of trying to poison your husband's lover or the scope of the 10th Amendment's reservation of power to the states, all of oral argument in today's case suffocates under an airless blanket of "standing doctrine." And standing doctrine is where all interestingness goes to die.
Former Solicitor General (and Slate contributor) Paul Clement represents Carol Bond this morning, and although it must be killing him not to talk about black widows, broken promises, and villainous lovers in bad mustaches, Clement sticks to the standing question. The gist of his argument is perfectly reasonable: His client "clearly satisfies" the court's "test for standing. Indeed, it is hard to imagine an injury more particularized or concrete than six years in federal prison."
Clement advances the argument that "the structural provisions of the Constitution are there to protect the liberty of citizens." He explains that the states should have authority to resolve their own criminal justice matters, and "in this case the state has a real legitimate interest in law enforcement."
He is interrupted by Justice Samuel Alito. "Doesn't that depend on the nature of the chemical that's involved?" he asks. "Suppose the chemical was—was something that people would normally understand as the kind of chemical that would be used in a chemical weapon? Let's say it's sarin." Sarin is a very, very bad chemical that kills people.
"This isn't sarin," Clement replies. "There is something sort of odd about the government's theory that says that 'I can buy a chemical weapon at Amazon.com.' "
Justice Stephen Breyer challenges Clement on the fact that the one most important case in this area is a 1939 decision that holds that even utility companies, which are closer to being a statelike entity than to being an individual, have no standing to bring suits under the 10th Amendment. Clement replies that the court should acknowledge that it's not good law anymore.
The Justice Department finds itself in its own Lifetime movie in this case—the one in which the woman, likely another former cast member of "Charlie's Angels," wakes up in a silky peignoir in an opulent mansion and discovers that she has amnesia. Or something. Because after passionately defending the position that Bond had no standing to raise a 10th Amendment challenge in the lower courts, the Obama administration changed its mind and decided that she did. That put the solicitor general's office in the strange position of having 20 minutes today to argue that Bond has standing to sue at some times and not other times but should nevertheless lose on her constitutional claims, anyhow.
It also put the court in the doubly strange position of having to reach out and tap a lawyer to argue against standing. Enter Stephen McAllister, a former Supreme Court law clerk and the solicitor general of Kansas who comes into the case for the last 20 minutes to argue that Bond cannot get into a court on her 10th Amendment claims. But first there is—in the manner of all Lifetime films—the Obama administration's offer to split the baby.
Michael Dreeben of the Solicitor General's office tries to provide a 10th Amendment standing compromise. But Justice Anthony Kennedy isn't buying the argument that some kinds of claims might be pursued by private citizens under the 10th Amendment while others may not. Kennedy puts it in terms that might even find its way into a Lifetime script someday: "The whole point of separation of powers, the whole point of federalism, is that it inheres to the individual and his or her right to liberty; and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised?"
And Alito—the court's officially designated animal lover—raises questions about the breadth of the chemical-weapons statute. "Suppose that the petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl?" he asks. "Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that's—that's a chemical weapon." He wonders whether life imprisonment for vinegar-based offenses isn't excessive.
When Dreeben attempts to say that such regulation might be permissible under the Commerce Clause precedent in the Raich medicinal-marijuana case, Justice Antonin Scalia hops in: "You're trying to drive vinegar out of the interstate market? Do the people know you're trying to do this? Can you really argue that this statute is designed to drive vinegar out of the interstate market?"
Finally it's McAllister's turn to argue against individual standing in 10th Amendment cases. He does an admirable job, but Chief Justice John Roberts sums up the view of most of the justices when he observes that it's "pretty harsh, if we're talking about prudential standing, to deny that to a criminal defendant, isn't it?"
McAllister explains that allowing individuals to bring 10th Amendment claims impinges on state sovereignty, because their interests are not always aligned. But the justices seem inclined to allow Bond her day in court, an argument Kennedy sums up at the close of today's argument with this observation: "Your underlying premise is that the individual has no interest in whether or not the State has surrendered its powers to the federal government, and I just don't think the Constitution was framed on that theory."
It's not at all clear that Carol Bond will prevail on the merits in her 10th Amendment claims, and she is due for release next year anyhow. But framed as a case about a woman sentenced under federal anti-terror law for what her lawyer dismisses as a mere "domestic dispute," her plea falls on sympathetic ears at the court. In the meantime, burgeoning Tea Party worries about the federal government's power to criminalize the massacre of goldfish with vinegar may have to wait a few more years for a definitive answer at the court. Until then, there is always the Nature Channel.
Correction, Feb. 23, 2011: This article originally misspelled the first name of law professor Garrett Epps. (Return to the corrected sentence.)