Court confronts question of who can sue when challenging federal actions

Washington Post Staff Writer
Wednesday, February 23, 2011

Supreme Court justices Tuesday seemed inclined to give Carol Anne Bond the chance to challenge the federal law under which she was prosecuted for trying to poison her husband's lover: a chemical weapons ban.

But the court seemed divided about whether to go beyond that question and wade into the knotty issues of federal power that her case raises.

Bond acknowledges that she used a combination of toxic chemicals to try to poison her former best friend, Myrlinda Haynes, after learning that Haynes was pregnant by Bond's husband, Clifford.

But Bond says she never should have been charged under the federal statutes that were enacted to implement a chemical weapons treaty. The laws called for more serious prison time - six years - than the Pennsylvania statutes that would otherwise have covered the attempted poisoning, which caused Haynes only minor harm.

The issue for the justices is whether an individual without the involvement of a state has the right to pursue the claim that the federal government has trespassed in areas reserved for the states - a subject of considerable interest to those who want to challenge the actions of Congress.

Bond has relied upon the Tenth Amendment, the tea party favorite that says any powers not delegated by the Constitution to the federal government "are reserved to the States . . . or to the people." But citing a 1939 Supreme Court precedent, the U.S. Court of Appeals for the 3rd Circuit said individuals can't proceed without the involvement of a state.

Bond's attorney, former Bush administration solicitor general Paul D. Clement, said Bond's ability "to challenge the constitutionality of the federal statute under which her liberty is being deprived should not be open to serious question."

Even the federal government now agrees she should be allowed to bring the challenge, even though it argues that it should fail. Deputy Solicitor General Michael R. Dreeben said the government has ample authority under the Constitution to write the laws that implement the treaty, known as the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.

The arguments prompted a lively discussion among the justices - all except for the day's most watched member, Clarence Thomas. As customary, he did not ask a question, marking his fifth anniversary of remaining silent during oral arguments.

Justice Samuel A. Alito Jr. was skeptical of the law that Congress had written. Almost anything involving a toxic substance would qualify for prosecution, Alito said - even if Bond had tried to extract her revenge by pouring vinegar into her rival's fish tank.

When Dreeben mildly objected, Alito cited the law:

"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."

Clement, too, had argued that the law was too broad. One of the chemicals Bond used was a chemical used in photography that she ordered online.

"This isn't sarin," Clement said, referring to the chemical classified as a weapon of mass destruction. "There is something sortof odd about the government's theory that says that I can buya chemical weapon at"

Justice Ruth Bader Ginsburg said such arguments were not at issue in whether Bond has the legal right - standing, it is called - to challenge her conviction.

But the reasoning employed by the court, if it agrees Bond may challenge the law, will be important beyond her case.

As a result, Bond has drawn support from Phyllis Schlafly's Eagle Forum, the libertarian Cato Institute, gun owners and the attorneys general from six states, who not so coincidentally are among those suing the federal government over President Obama's health-care act.

The case is Bond v. United States.

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