Bond's prosecution, the focus of a case the Supreme Court heard on Tuesday, could do a lot more damage. Defending its decision to make a federal case out of what sounds like fodder for a tabloid talk show, the Justice Department argues that treaties can give Congress new powers -- a theory that threatens to destroy the constitutional division of authority between the states and the national government.
Instead of letting Pennsylvania's courts handle Bond's crime, federal prosecutors decided to indict her under the Chemical Weapons Convention Implementation Act. She received a six-year prison sentence, three times as severe as the maximum penalty available under state law.
The federal law makes it a crime to possess or use "any chemical weapon," defined as any substance that "can cause death, temporary incapacitation or permanent harm to humans or animals" unless it is intended for "peaceful purposes." Hence a host of widely used chemicals -- chemicals that are sitting right now in your garage or under your kitchen sink -- can be converted into contraband by evil thoughts.
A can of bug spray becomes a chemical weapon as soon as you think about deploying it against the dog that keeps pooping on your lawn. As Supreme Court Justice Samuel Alito observed during an earlier phase of Bond v. United States, even a bottle of vinegar can be a chemical weapon if you pour it into someone's goldfish bowl.
On its face, this statute authorizes federal intervention in any case involving a malicious use of chemicals, no matter how local, ordinary or trivial. But what authorizes the statute? According to the Justice Department, the Chemical Weapons Convention does.
In other words, instead of going through the arduous process of amending the Constitution, the president and the Senate can expand the federal government's powers by agreeing to treaties. If the power to regulate interstate commerce cannot be stretched to accommodate a federal ban on possessing guns near schools or a mandate requiring everyone to buy government-approved medical coverage, a treaty dealing with firearms or health care will do the trick.
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