Wednesday, October 13, 2010
The Supreme Court granted certiorari yesterday in Bond v. United States (No. 09-1227). The question presented is: “Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.” According to the opinion below (from the Third Circuit):
[C]ourts of appeals are split on whether private parties have standing to challenge a federal act on the basis of the Tenth Amendment. Two circuit courts have allowed private parties to bring such challenges. See Gillespie v. City of Indianapolis, 185 F.3d 693, 703–04 (7th Cir. 1999), cert. denied, 528 U.S. 1116 (2000); Atlanta Gas Light Co. v. U.S. Dep’t of Energy, 666 F.2d 1359, 1368 n. 16 (11th Cir. 1982). Five have not. See United States v. Hacker, 565 F.3d 522, 525–527 (8th Cir. 2009); Oregon v. Legal Servs. Corp., 552 F.3d 965, 971–72 (9th Cir. 2009); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234–35 (2d Cir. 2006), cert. denied, 128 S.Ct. 44 (2007); Medeiros v. Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005), cert. denied, 548 U.S. 904 (2006); United States v. Parker, 362 F.3d 1279, 1284–85 (10th Cir. 2004), cert. denied, 543 U.S. 874 (2004).
We are persuaded by the reasoning advanced by the majority of our sister courts and conclude that a private party lacks standing to claim that the federal Government is impinging on state sovereignty in violation of the Tenth Amendment, absent the involvement of a state or its officers as a party or parties.
The Third Circuit added:
Our conclusion does not bar individuals from any recourse in the face of Tenth Amendment violations accepted by a state. As the First Circuit Court explained, “the State represents the interests of its citizens in general, and, if it refuses to prosecute a viable Tenth Amendment claim, the citizens of that state may have recourse to local political processes to effect change in the state’s policy of acquiescence.”
SCOTUSblog’s case file is available here, which contains links to the Third Circuit’s opinion (reported at 582 F.3d 281) and the cert-stage briefs.
PS: The cert. petition raises only the standing issue, but Bond’s constitutional challenge is also worth noting. The defendant was convicted under a criminal statute that implemented the 1993 Chemical Weapons Convention. As described in the Third Circuit’s opinion, the government argued that “the Tenth Amendment is no impediment to the operation of § 229 because Congress had authority to enact it under the Necessary and Proper Clause of the Constitution as a law enforcing its Treaty Power. Relying on Missouri v. Holland, 252 U.S. 416, 432 (1920), the Government asserts that § 229 need not be authorized by a specific power given to Congress, nor contain a requisite federal interest element.” The Third Circuit noted that the defendant’s challenge “ask[s] us to wade into the debate over the scope and persuasiveness of the decision in Holland.” Because of its standing decision, the Third Circuit did “not reach the merits of Bond’s arguments concerning the constitutionality of § 229 under our federal system of government.”