(Adds oral argument discussions)
By Lawrence Hurley
WASHINGTON Nov 5 A majority of U.S. Supreme
Court justices on Tuesday signaled concern that the federal
government may have wrongly used a chemical weapons law to
prosecute a Pennsylvania microbiologist convicted of trying to
poison her husband's lover.
Seemingly taken from the storyline of a television police
drama, the tale, in fact, raises a core question about the power
of Congress to enact laws implementing international treaties
the U.S. government has signed.
The justices appeared divided on this point as they probed
lawyers with a series of hypothetical questions that touched
upon a wide array of subjects, including gay marriage and
disgraced cyclist Lance Armstrong. The U.S. government's current
interest in preventing the Syrian government from possessing
chemical weapons was mentioned repeatedly.
Carol Anne Bond admitted to trying to poison her former
friend, Myrlinda Haynes, with toxic chemicals she took from
work. Bond sprinkled lethal compounds on Haynes' mailbox, car
door handles and house doorknob between November 2006 and June
Bond was prosecuted by the federal government under a 1998
U.S. law banning the use of chemical weapons other than for a
"peaceful purpose." Suspects in local crimes are usually
prosecuted under state criminal laws.
During a one-hour oral argument, a majority of the nine
justices appeared skeptical of the government's decision to
prosecute Bond. Questions raised by Justice Stephen Breyer, one
of the liberals on the court, related to some of the same
concerns voiced by the court's conservatives, including regular
swing vote Justice Anthony Kennedy. The most likely outcome
would be a narrow ruling that throws out Bond's conviction while
leaving the law intact.
Solicitor General Donald Verrilli, representing the Obama
administration, told the court it was "unimaginable" that
Congress would enact a law that would give the federal
government police powers normally reserved for the states.
"It also seems unimaginable you would bring this
prosecution," Kennedy said, in a comment reflecting hostility by
some on the court to the administration's stance.
Some of the conservative justices appeared eager to discuss
the broader implications of Congress encroaching on state
authority through enactment of legislation implementing
Justice Antonin Scalia, for example, wondered whether
Congress could ratify a treaty that would force all states to
allow same-sex marriage.
As marriage is usually a matter of state law, such a law
would be "dragging the Congress into areas where it has never
been before," Scalia said.
Justice Samuel Alito opted for a more humorous hypothetical
example, citing the tradition of distributing candy on
"Would it shock you if I told you that a few days ago my
wife and I distributed toxic chemicals to a great number of
children?," he asked. Chocolate is poisonous to dogs, Alito
Verrilli, visibly irritated with some of the lighthearted
questions, responded to the probing from the bench by saying
that a ruling undermining Congress' authority to implement
treaties would have significant foreign policy implications for
the U.S. government.
"This is serious business," he said.
Verrilli noted the U.S. government's work to stop Syria from
using chemical weapons.
"One of the very things we are trying to sort out right now
in Syria under the chemical weapons convention is where the line
is between peaceful uses and warlike uses," he said.
A ruling against the government could also undermine the
authority of U.S. negotiators in future treaty discussions, he
Bond's lawyer, Paul Clement, proposed a compromise. He said
the court could make a distinction between chemicals like sarin
gas, which is "inherently a chemical weapon," and others that
are generally used for peaceful purposes. Of the nine justices,
Breyer appeared most keen to take that kind of approach. He
noted that there are many chemicals used for peaceful purposes,
including those used by athletes like Lance Armstrong, that have
"absolutely nothing to do with chemical weapons."
Bond was sentenced to six years in prison after entering a
guilty plea that gave her a right to appeal. The poison burned
Haynes' thumb but she was otherwise unharmed.
A ruling is expected by the end of June. The case is Bond v.
United States, U.S. Supreme Court, No. 12-158.
(Reporting by Lawrence Hurley; additional reporting by Jonathan
Stempel; editing by Howard Goller and Jackie Frank)