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Standing, Federalism, and the Tenth Amendment

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Dahlia Lithwick and Adam Liptak have good articles about yesterday’s oral argument in Bond v. U.S. The substantive issue of the case is whether a law implementing the 1993 Chemical Weapons convention can be used to bring federal charges against a woman who poisoned a woman who was impregnated by her husband.   Like most people, I don’t much care about “federalism”; unlike many people, I’m candid about it.    But even to me, this is an exceptionally dubious exercise of federal authority, stretching the meaning of a federal statute to reach criminal activity that’s within the purview and competence of the states without any relationship to a larger regulatory objective.   While the law itself isn’t problematic — actual trafficking in chemical weapons could require federal intervention — it’s hard to justify its application in this particular case.   Certainly, it’s a much better example of federal “overreach” than the ACA.

The Court may not reach the substantive issue, however, because the 3rd Circuit ruled that Bond did not have the standing to challenge her conviction, because only states can raise 10th Amendment claims.   While I would normally agree with Lithwick “standing doctrine is where all interestingness goes to die,” in this case I think it is of some interest — because the lower court holding strikes me as nutty.   This doesn’t mean, I should add, that the fault lies with the 3rd Circuit, which was arguably bound by a New Deal-era precedent arguing that a utility lacked the standing to bring a 10th Amendment challenge.   But the point of standing doctrine is to ensure that the courts only resolve concrete cases, and as Clement says “it is hard to imagine an injury more particularized or concrete than six years in federal prison.”   The argument that Bond lacks standing to challenge the constitutionality of a law that could result in her being sent to jail is bizarre, and it looks as if the Court will sensibly agree and either distinguish or overrule the precedent.

One final point is that I don’t understand the distinction between “10th Amendment claims” and claims that Congress exceeded its Article I powers that several justices apparently discussed. As the Court correctly argued seven decades ago (“The amendment states but a truism that all is retained which has not been surrendered”), by definition if Congress is acting within its authority there’s no 10th Amendment violation, and if Congress exceeds its Article I authority it violates the 10th Amendment. I remain puzzled by what else the 10th Amendment could mean.

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