The Constitutional Loophole Emerging From a Poisoned Doorknob

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Under nearly every kitchen sink in America is a collection of chemicals, ranging from bleach to drain cleaner. When used as intended, they make everyday life easier and more efficient. However, with the wrong intentions, these everyday cleaning products can burn, blind, and even kill. 

Carol Anne Bond, a trained microbiologist from suburban Philadelphia, knew better than most how these chemicals could be used for harm. In 2005, Bond learned that her closest friend, Myrlinda Haynes, was pregnant. Yet, this excitement soon shifted, as the Third Circuit later summarized, “Bond’s excitement turned to rage when she learned that her husband, Clifford Bond, was the child’s father.” She vowed revenge.

Bonds’ retaliation began with simple threats and harassments by phone and writing, conduct which she inevitably pleaded guilty to in state court. This ruling, however, did not deter Bond; rather, she escalated her threats. Drawing on her professional expertise, Bond stole an arsenic-based compound known as 10-chloro-10H phenoxarsine from her employer, Rohm and Haas, and ordered a second substance, potassium dichromate, online. While Bond’s aim was never to kill, but simply to inflict a small rash, sufficient amounts of these chemicals could have posed a serious threat. 

Over the span of eight months, Bond spread the chemicals on Haynes’s mailbox, doorknobs, and car doors. Without foresight, the paste was bright orange, which led Haynes to avoid it mostly, though she suffered a minor burn on her thumb. While Haynes attempted to reach out to local police, it was generally ignored until the Federal Postal inspectors caught Bond on camera. It was at this stage that the local crime became a major federal case with significant constitutional implications.

Rather than leaving the case to state officials, federal prosecutors stepped in and charged Bond under the Chemical Weapons Convention Implementation Act of 1998, a law Congress had passed to carry out a global treaty banning chemical warfare. As a result, Bond was sentenced to six years in federal prison, almost three times the sentence she could have faced if left to state jurisdiction. 

Bond appealed her sentence and eventually reached the Supreme Court twice in Bond v. United States, once in 2011 and again in 2014. Both instances of the case raise a significant question that remains unanswered: whether a federal law implementing an international treaty could be used as legitimate jurisdiction to prosecute a purely local, individual assault. 

The chemicals used by Bond were never meant to be any kind of weapon of mass destruction, and neither was the statute used against her meant to resolve a feud between two former friends. These conflicting ideas and inconsistencies raise a question the Supreme Court has refused to answer and has not yet clarified: can a treaty give Congress powers that the Constitution otherwise does not grant it, particularly in areas traditionally reserved to the states under the Tenth Amendment?

When drafting the Constitution, our framers deliberately aimed to limit federal power. As James Madison explained in Federalist No.45, the powers given to the federal government were “few and defined” while the ones left to the states were “numerous and indefinite.” Further, he wrote that Federal powers would be exercised “principally on external objects, as war, peace, negotiation, and foreign commerce,” while states would be reserved to govern matters concerning the “lives, liberties, and properties of the people.” In this, the treaty power, which allows the president to make agreements with foreign nations, was exactly one of the federal tools our founders intended to handle the “external objects.” 

However, for over a century, one Supreme Court decision has allowed this mechanism to be turned inward. In the case Missouri v. Holland, the court used its power to uphold a federal law protecting migratory birds, despite two federal district courts having previously ruled that Congress lacked the authority to regulate hunting. Because this new law carried out an agreement with Great Britain, the Court held that it was, in fact, constitutional, despite Article I’s typical limits on power. Normally, Congress can pass laws only on the subjects that Article I explicitly lists, such as taxing and war. Yet, the necessary and proper clause of Article I also gives Congress the power to pass any law that might be “necessary and proper” for carrying out the rest of the federal government’s powers, including treaties. This implication is striking. By signing a treaty, the president, alongside two-thirds of the Senate, could expand the range of areas in which Congress can exercise its power without any amendment. 

This is exactly how the law reached Bond. Congress had no general power to punish a local poisoning, a job usually reserved for states. However, the national treaty that banned chemical weapons was now used to justify the federal intervention in her case. The constitutional problem was therefore whether the treaty could confer on the federal government’s authority, which Congress would not have possessed on its own.

In Bond’s first appearance at the Supreme Court, it was simply ruled that she was, in fact, allowed to argue her case, yet no decision was reached. Following this, the Third Circuit upheld her conviction under the prior Holland decision, though Judge Thomas Ambro hastily urged the Supreme Court to clarify Congress’s treaty-based powers. In 2014, its second appearance, the Court reversed Bond’s conviction, but not on constitutional grounds. Chief Justice John Roberts concluded that Congress had never clearly intended the chemical weapons law to reach a local assault, and as he put it, “The global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard.” Since the statute did not originally cover Bond’s conduct, the Court avoided an explicit decision and did not have to decide whether Congress had the power in the first place, leaving a gap in transparency. 

Without a clear constitutional rule, lower courts have been left with a case-by-case question of whether crimes might be serious enough to warrant federal intervention. In April of 2020, Christopher Perez, a San Antonio man, falsely posted on Facebook that he had hired a COVID-19 patient to lick everything in two of his local grocery stores. No physical harm or action was done, yet Perez was convicted and classified as a biological weapons hoax. This conviction was upheld by the Fifth Circuit in 2022, which held that his conduct was serious enough to fall under federal jurisdiction. With this, a large contrast emerges, where Bond physically burned another person and was deemed a local matter, Perez also targeted a local area with no physical harm, yet was deemed to be serious enough to warrant federal intervention. 

Other cases fall on a blurry line. In 2018, Army Special Agent Lesly Lindor murdered his wife using a neurotoxin found in pufferfish, tetrodotoxin, which he had obtained in Haiti. Using the same treaty-implementing mindset, his conviction was affirmed, despite his actions being just like Bond’s, targeting a single person in a domestic dispute. He later appealed and, surprisingly, did not mention the Bond case at all. Unlike Bond’s case, Lindor’s case did not produce a Supreme Court ruling clarifying whether treaty-based federal authority could reach a purely domestic crime

These comparisons are a concrete example of the dangers of unanswered constitutional questions. The problem is not simply that different defendants may receive different outcomes. More fundamentally, the absence of a constitutional rule leaves unclear where federal authority ends and state authority begins. In the absence of precedent, judges begin to invent their own distinctions, defendants lack the knowledge to raise issues, and prosecutors test the limits of interpretation. 

The stakes of such ambiguity go well beyond a handful of poisoning or bird hunting cases. The process of amending the Constitution requires two-thirds of both houses of Congress and an additional ratification by three-fourths of the states. A treaty requires only two-thirds of the Senate and the president, with no role for the House or the states. Yet, as Holland was handled, a treaty accomplished what otherwise would have required a major amendment to the Constitution. Modern treaties reach into vast territories, from human rights to criminal law, and, given their application in the preceding cases, almost any domestic issue could become the subject of one.     

Defenders of the ruling in Holland do bring in concrete arguments. Justice Oliver Wendell Holmes, in his opinion, called protecting migratory birds “a national interest of very nearly the first magnitude.” Birds cross both state and national borders, so no single state could protect them alone. And in this way, a treaty to protect them would be meaningless if the federal government couldn’t enforce it. This same logic can apply to foreign policy as a whole; if individual states can block a treaty within their local jurisdictions, other nations would have little reason to trust America’s promises. Even the 2014 majority’s choice in Bond’s case to avoid the constitutional question at hand can be seen as a reasonable caution; it freed Bond without overturning over a hundred years of precedent. 

Still, these arguments protect the treaty specifically, not the issue of expanded power. Holmes was correct that migratory birds needed national protection, but Congress’s power to regulate interstate commerce likely would have been sufficient. This holds true for most treaties today: the United States can keep its international promises to other nations using its powers under the Constitution, yet these treaties need not be integrated into local issues. As for the Court’s caution in 2014, it was a fair choice, but only protected Bond, leaving no precedent for the next defendant who might face this issue.

The Supreme Court freed Anne Bond but left the underlying problem in place, and the lower courts have spent years since drawing lines where they see fit. The Court should adopt the principle its concurring justices outlined in 2014, that the power to make treaties is not a power that Congress can legislate beyond Article I. Treaties may bind the nation as a whole, but they should not be able to expand Congress’s power at home and stretch the Tenth Amendment. 

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This article was edited by Hana Bessa Szuchmacher and Nicolas Meetze.