Supreme Court Unanimously Upholds Individuals’ Standing to Raise Tenth Amendment Challenges

June 17, 2011
Guest Post

By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.

Yesterday, the United States Supreme Court unanimously held that criminal defendants have standing to challenge the constitutionality (vis-à-vis the Tenth Amendment) of federal criminal statutes under which they are charged.  The Tenth Amendment reinforces federalism, providing that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Supreme Court’s ruling on individuals’ Tenth Amendment standing came in Bond v. United States, an appeal brought by a microbiologist who had been married for several years but couldn’t bear a child. When Ms. Bond’s best friend announced that she was pregnant, Ms. Bond was excited. When Ms. Bond discovered that her husband was the child’s father, though, her mood understandably soured. She vowed to get revenge against her one-time best friend and tried to poison her with lethal chemicals that she stole from work and ordered online.

Ms. Bond was ultimately charged with possessing and using a chemical weapon in violation of a federal criminal statute that implemented the United States’ treaty obligations under an international chemical-weapons treaty. At the district court, Ms. Bond argued that when Congress passed this statute, it exceeded its powers under the Constitution. The district court rejected that argument, but Ms. Bond has pursued it on appeal all the way to the United States Supreme Court.

The argument against the constitutionality of the law at issue in Bond has several points in its favor. Unlike other federal statutes that address assaults, the law under which Ms. Bond was prosecuted includes no requirement that the alleged assault occur within the special jurisdiction of the United States, that the assault have an effect on interstate commerce, that the victim be a person or institution with recognized federal status, or that some other federal interest be involved. The law also includes no requirement that the government prove a federal interest as an element of the offense. As such, the law potentially criminalizes conduct with very little connection to a legitimate federal interest.

Before even considering these arguments, though, a court must first satisfy itself that Ms. Bond has standing to advance them.  The argument against that proposition is straight-forward: To have standing, Ms. Bond must show that she suffered an actual or threatened injury and she cannot make that showing because the injury from laws that violate the Tenth Amendment fall upon the states whose sovereignty is intruded upon. In its ruling, the Supreme Court unanimously rejected that line of reasoning, concluding that Ms. Bond does, in fact, have standing to challenge the constitutionality of the law under which she was prosecuted. Writing for the unanimous Court, Justice Kennedy noted that federalism protects the rights of individuals as well as the rights of states:


Federalism . . . protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.  By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.  When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the States.  States are not the sole intended beneficiaries of federalism . . . Fidelity to principles of federalism is not for the States alone to vindicate.


Ms. Bond’s case will now go back to the lower courts, which will consider the merits of her constitutional challenge to the law under which she was prosecuted. The implications of the Court’s Bond opinion, though, may reach far beyond the facts of that case. Individuals challenging federal laws that purportedly overstep the enumerated powers of federal government (the Patient Protection and Affordable Care Act comes to mind) will now look to Bond for the proposition that states are not the sole intended beneficiaries of federalism and that individuals can themselves vindicate constitutional principles of federalism.