Academic journal article Notre Dame Law Review

Bond V. United States: Choosing the Lesser of Two Evils

Academic journal article Notre Dame Law Review

Bond V. United States: Choosing the Lesser of Two Evils

Article excerpt

INTRODUCTION

In Bond v. United States, Carol Anne Bond used toxic chemicals in an attempt to poison her husband's lover. (1) The federal government prosecuted Bond for violating the Chemical Weapons Convention Implementation Act of 1998 (CWC Act). (2) Congress enacted the CWC Act to implement the United States' obligations under the Chemical Weapons Convention (CWC), a multilateral treaty signed in 1993 that is designed to address the global threat posed by chemical weapons. (3) Bond challenged the constitutional validity of the federal statute and urged the Court to overrule Missouri v. Holland, (4) a 1920 case holding that the combination of the treaty power and the Necessary and Proper Clause empowers Congress to enact treaty-implementing legislation that would exceed the scope of Congress's Article I powers in the absence of a treaty. (5) Chief Justice Roberts, writing for the majority, avoided the constitutional question by adopting a narrow construction of the statute. (6) Justice Scalia, writing for himself and Justice Thomas, would have overruled Holland and invalidated the CWC Act. (7)

This essay makes two main points. First, the majority's interpretation of the CWC Act is inconsistent with the statute and the underlying treaty. Indeed, the majority opinion displays a basic misunderstanding of the design of the underlying treaty. Second, Justice Scalia's construction of the Necessary and Proper Clause is antithetical to the structure and original understanding of the Constitution. If adopted as law, Justice Scalia's view would seriously harm the federal government's ability to conduct foreign affairs on behalf of the nation. Since Justice Scalia's constitutional error would be far more damaging than the majority's statutory error, the majority's statutory misinterpretation is the lesser of two evils.

I. THE STATUTORY ISSUE IN BOND

Chief Justice Roberts began his opinion in Bond by invoking the horrors of World War I. He claimed that the international reaction to the use of chemical weapons in World War I led to "an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings." (8) Nowadays, he said, "that objective is reflected in the [CWC]." (9) With due respect for the Chief Justice, his view of history is seriously mistaken. International reaction to the horrors of World War I led to adoption of the 1925 Geneva Protocol, which banned the use of chemical weapons. (10) Unfortunately, the 1925 Geneva Protocol was a failure because it did not address the two central problems that modern arms control treaties are designed to address: breakout and verification.

The 1925 Geneva Protocol merely banned the "use in war" of chemical weapons. It did not ban the manufacture or stockpiling of chemical weapons. (11) Accordingly, the treaty created a breakout problem: states could legally acquire large stockpiles of chemical weapons and then "break out" front the treaty constraints on a moment's notice by using those weapons in war. One way to address the breakout problem would be to ban the manufacture and stockpiling of chemical weapons. Even this approach, however, does not fully address the breakout problem. Under this approach, states could lawfully acquire large stockpiles of toxic chemicals that could be converted into weapons on very short notice. Such stockpiles of chemicals pose a significant threat to other nations. The CWC is designed to address that threat. Accordingly, the CWC obligates states not to "develop, produce, otherwise acquire, stockpile or retain chemical weapons." (12) Moreover, it defines the term "chemical weapons" to include "[t]oxic chemicals and their precursors." (13) Thus, unlike the 1925 Geneva Protocol, the 1993 CWC incorporates two key features to address the breakout problem. Instead of merely banning the use of chemical weapons, it bans development, production, acquisition, and stockpiling. …

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