Unusual Supreme Court Mix: Chemical Weapons, Treaties, and Education

By Mark Walsh — November 05, 2013 7 min read
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What does a U.S. Supreme Court case about a poisonous love triangle and an international treaty on chemical weapons have to do with U.S. education policy?

Potentially a lot, according to several groups that filed friend-of-the-court briefs in a case argued before the justices on Tuesday. The short explanation is that these groups worry that world treaties on education and family law might require the federal government to wade into policies that are traditionally the province of the U.S. states. And they appeared to have made an impression on some of the justices.

The case of Bond v. United States (No. 12-158) involves a 1993 world treaty on chemical weapons that was ratified by the U.S. Senate in 1997.

The treaty required signatory nations, among other things, to adopt criminal laws prohibiting individuals from doing anything with chemical weapons that nations couldn’t do. Congress passed a law in 1998 that makes it unlawful for a person knowingly “to develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon.”

Federal authorities used the law to charge Carol Anne Bond, a Pennsylvania microbiologist who had used chemicals to attempt 24 separate times to poison a woman who had become impregnated by Bond’s husband. The chemicals were an arsenic-based specialty chemical from Bond’s employer and potassium dichromate she had ordered over the Internet.

The chemicals were spread on the victim’s car door handles and her mailbox. The victim, who suffered a chemical burn on one occasion, was told by local police to contact postal inspectors, and the federal law-enforcement agents discovered the poisoning by staking out the victim’s home.

Bond, now 42, pleaded guilty to two counts of possession of chemical weapons under the federal statute implementing the international treaty, but she reserved her right to appeal.

Bond’s lawyers contend that her case is one of an ordinary poisoning, not chemical warfare, and that the U.S. Constitution imposes limits on the authority of Congress to enact treaties when the resulting federal statute intrudes on state prerogatives, such as basic criminal matters in Bond’s case.

“This court’s cases have made clear that it is a bedrock principle of our federalist system that Congress lacks a general police power to criminalize conduct without regard to a jurisdictional element or some nexus to a matter of distinctly federal concern,” said attorney Paul D. Clement, arguing for Bond.

In that vein is where the groups chime in with their education concerns.

“International human rights treaties are increasingly invoked not only to direct national policies ... but also domestic laws that are solely of state or local concern,” says the brief on Bond’s side filed by the Home School Legal Defense Association, based in Purcellville, Va.

The group said it was particularly concerned about the language in international treaties about education and family law, and what that could mean for the U.S. states if the federal government has unfettered power to implement such treaties.

For example, “International agencies have called upon national governments to satisfy international obligations by increasing the length of compulsory education from 8 to 11 years,” the brief says. “In the United States, such a call for uniformity would destroy the significant diversity that exists among the states, where the length of compulsory education varies widely ... from nine years to as many as 13.”

International treaties have also encroached on such areas as teacher education, adequate spending, and mandatory curriculum matters such as peace education and sex education, the home-schooling group says.

One treaty that groups have in mind is the 1989 United Nations Convention on the Rights of the Child, which was signed by President Bill Clinton in 1995 but never ratified by the U.S. Senate.

In another friend-of-the-court brief on Bond’s side, the Washington-based Center for Individual Rights quotes an academic study of the treaty saying that it “guarantees children a right to social security, an adequate standard of living, education, and juvenile justice” and has “a general principle that the ‘best interests of the child’ will be followed in ‘all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.’”

“Yet,” the CIR says in its brief, “the federal government has never been thought to have, under the current Constitution, wholesale jurisdiction over such matters, which instead are left to the states.”

The American Center for Law and Justice, also based in Washington, said in its brief on Bond’s side that approving broad power for Congress to implement treaties could lead a U.S. administration to enter an agreement with one or more nations on matters such as private school vouchers or the regulation of home schooling or gun possession near schools.

“These are all generally matters of choice for state and local governments,” the ACLJ brief says. “The federal government may not dictate a one-size-fits-all result in either direction.”

The concerns in the groups’ briefs got some attention during oral arguments on Tuesday. Justice Antonin Scalia took the example of family law, which he said was “an area where the federal government has never been thought to have authority.”

What if there were an international treaty approved by the United States that required the U.S. states to recognize same-sex marriage, Scalia wondered. He noted a somewhat complex distinction between “self-executing” treaties, which have the force of law in the United States once they are signed by the president and ratified by the Senate, and “non-self-executing” treaties, such as the chemical-weapons pact at issue in the case, which require some legislative action by the full Congress to be implemented. (Many modern treaties are in the latter category because they call on signatory nations to adopt certain laws.)

Scalia said a non-self-executing treaty on same-sex marriage would “drag Congress into areas where it has never been before,” Scalia said.

Chief Justice John G. Roberts Jr. noted that especially since World War II, “there are a lot of treaties— ... international conventions affecting everything.”

“We have international conventions on the abduction of children, international conventions that [address] human rights; they cover a vast swath of subject matter,” said Roberts, who expressed concern about the potential expansion of congressional power.

A majority of the court appeared to be skeptical of the federal government’s arguments.

U.S. Solicitor General Donald B. Verrilli Jr. defended the federal prosecution of Bond and the government’s interpretation of the chemical-weapons implementing statute.

Bond’s proposed limit on the federal treaty power “would compromise foreign affairs and national security interests of the first order,” Verrilli said during the arguments.

In his brief on behalf of the Obama administration, Verrilli included an education-related example of his argument that it is long-settled law that the Constitution’s treaty power has sometimes extended into matters that ordinarily have been within the jurisdiction of the states.

He said that an 1868 treaty with China and an 1894 treaty with Japan provided that subjects of those countries residing in the United States would enjoy the same rights and privileges as other foreign nationals living here. Nonetheless, in the late 19th and early 20th centuries, some states and localities passed laws requiring Chinese and Japanese children to attend separate schools.

“Even though these laws involved matters, such as education, within the reserved police powers of the states, courts invalidated them on the ground that they were supplanted by the treaties,” Verrilli said in the brief.

Verrilli quoted a 1907 speech by Secretary of State Elihu Root to an international law society in which Root explained that the federal government had taken legal action to enjoin a discriminatory school ordinance passed by the city of San Francisco as being in conflict with U.S. treaty obligations.

Under the U.S. Constitution, Root said, “legislative power is distributed: upon some subjects the national legislature has authority; upon other subjects the state legislature has authority,” but “the treaty-making power is not distributed; it is all vested in the national government; no part of it is vested in or reserved to the states.”

A decision in the case is expected by next June.

A version of this news article first appeared in The School Law Blog.