State's Rights
Carole Anne Bond was pissed. Oh sure, she was initially happy that her best friend was pregnant, despite the fact that she herself couldn't conceive, but her joy ended when she found out that her own husband was the child's father. Instead of living life as a cliche, however, Carole decided to get even: she took an arsenic-based chemical from her employer, ordered a vial of potassium dichromate through Amazon from a photography supplier, then rubbed the chemicals on her ex-friend's car door handle, mailbox, and apartment doorknob, believing that they would give her a rash.
It didn't, and Carole was caught. Imagine her surprise when her failed attempts led not to a charge of simple assault or harassment in state court, but a Federal indictment for violating a statute Congress had passed implementing the United States' obligations under the 1993 Chemical Weapons Convention.
To call this idiocy would be to flatter it, but it only gets worse. After being sentenced to six years in prison, Carole appealed to the 3rd Circuit, claiming that the application of the statute to her in this situation represented a "massive and unjustifiable expansion of federal law enforcement into a state-regulated domain." Instead of addressing that issue, the 3rd Circuit held that she lacked standing to raise it: since her argument was really that the statute intruded upon powers reserved to the states by the 10th Amendment, only state officials had standing to raise the issue.
The notion that a criminal defendant lacked standing to challenge the law under which she was prosecuted was so outlandish that not even the government itself sought to defend it. The Court wound up appointing counsel to defend the judgment, and everybody got together on Tuesday to talk it out.
The subtext of the oral argument in US v. Bond (link is to all the court opinions and briefs), of course, was the increasing Federalization of criminal law, which I discussed here a couple years ago. The concept of states rights has enjoyed a revival in recent years as conservatives and liberals alike have become concerned over the aggrandizement of Federal power. (Although liberals object to criminal laws, but not other laws like health care reform, while conservatives generally object to the latter but not the former.)
I thought the argument might expose some of the justices' views on that, but it really didn't, probably because of the posture of the case: the issue wasn't the legitimacy of the law, but with whether Bond could even argue that. A good part of the argument was dominated by a case about electricity. Back in 1939, the Supreme Court had rejected a challenge by local electricity distributors to the act establishing the Tennessee Valley Authority. The plaintiffs had raised numerous claims, but it was a single sentence in the Court's opinion dismissing the 10th Amendment claim that raised problems: the Court noted that the states hadn't objected to the TVA, and thus "the appellants, absent the states or their officers, have no standing in this suit to raise any question under the [Tenth] amendment."
Whether that was mere dicta, should be ignored, or should be overruled is probably immaterial. The chances are pretty good that it's not going to be an impediment to Bond's standing to raise the argument. The problem with the 3rd Circuit's decision was probably best voiced by Justice Kennedy in a question to the lawyer seeking to uphold the judgment:
Your underlying premise is that the individual has no interest in whether or not the State has surrendered its powers to the Federal Government, and I just don't think the Constitution was framed on that theory.
The much tougher question is what happens to Bond when it does go back. Part of the problem is that, from a logical standpoint, the 10th Amendment is meaningless. It simply provides that powers not granted to Congress are reserved to the states. Much time was spent in argument discussing whether Bond was making a 10th Amendment claim or an "enumerated powers" claim -- that Congress lacked the power to enact the statute. Again, from a purely logical standpoint, they're one and the same. If the statute didn't fall within one of the powers given Congress by the Constitution, then it's invalid, and that's the end of the discussion. If the Constitution didn't give it in Article I, which defines Congress' powers, it's not taken away by the 10th Amendment.
I emphasize "logical" in the above analysis because there's another argument here: that the 10th Amendment was a clear expression of the intent that the Federal government be one of limited powers, and that although the Amendment may not nullify legislation on its own, it should at least be considered in the context of deciding whether a particular statute ventures into territory best left to the states.
That may be a nice argument, but whether Bond's going anywhere with it is another matter. The post I did two years ago cited above dealt with the 4th Circuit's decision in US v. Comstock, which struck down a statute allowing the US Attorney General the power to certify that someone in Federal prison was "sexually dangerous," which could result in them being retained indefinitely in prison. The 4th had held that the statute was unconstitutional in light of the fact that issues of civil commitment and mental health were traditionally reserved for the states, but the Supreme Court ultimately reversed, upholding the law as valid under the Necessary and Proper Clause.
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