Bond v. United States (09-1227)

Oral argument: Feb. 22, 2011

Appealed from: United States Court of Appeals for Third Circuit (Sept. 17, 2009)

TENTH AMENDMENT, TREATY POWER, STATE SOVEREIGNTY, STANDING

Petitioner Carol Anne Bond spread chemicals around the home of Myrlinda Haynes to seek revenge for Haynes’s impregnation by Bond’s husband. Bond was charged with several crimes, including use of a chemical weapon under 18 U.S.C. § 229(a)(1). Congress enacted the statute pursuant to the Chemical Weapons Convention of 1993 in order to meet American obligations under the Convention. Bond appealed to the Third Circuit Court of Appeals on several grounds, including a claim that 18 U.S.C. § 299(a)(1) violates the Tenth Amendment because the police power to prosecute criminals is a power reserved to the states. The Third Circuit found that as a private party attempting to claim a violation of state sovereignty under the Tenth Amendment, Bond lacked standing. Bond appealed to the Supreme Court on the issue of her standing. In addition to determining whether private parties have standing to bring suit under the Tenth Amendment, the decision may also impact the scope of Congress’s authority to enact statutes implementing international treaty obligations, and what checks, if any, exist on that power.

[Question presented]
[Issue]
[Facts]
[Discussion]
[Analysis]

Question presented

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.

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Issue

Where a criminal defendant was convicted of use of a chemical weapon under 18 U.S.C. § 229(a)(1), may she challenge the validity of the statute under the Tenth Amendment, or as a private party, does she lack standing to make a Tenth Amendment challenge?

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Facts

Carol Anne Bond is a trained microbiologist, who worked as a technical assistant at Rohm and Haas. Bond's best friend, Myrlinda Haynes, became pregnant, and Bond discovered that the father of the child was her husband, Clifford Bond. After this discovery, Carol Anne Bond began to spread chemicals around Haynes's home, including on doorknobs, on car door handles, and in her mailbox. . Bond continued spreading chemicals over several months, doing so on at least twenty-four occasions. She had stolen the chemical 10-chloro-10H-phenoxarsine from her employer and ordered a vial of potassium dichromate on the Internet. Haynes discovered the chemicals in most cases and avoided harm, but in one case she burned her thumb.

Haynes complained to the police about the chemicals, and the police suggested that she wipe door handles clean before using them in the future. Haynes then took the matter to the United States Postal Inspection Service (USPIS) and reported the presence of chemicals on her mailbox. The postal inspectors placed surveillance cameras on Haynes's property, and caught Bond taking a business envelope out of Haynes’s mailbox and placing potassium dichromate in Haynes’s car muffler. The postal inspectors traced the potassium dichromate to a storage center at Rohm and Haas.

The police obtained an arrest warrant for Bond based on the videos, the missing chemicals at Rohm and Haas, and a chemical analysis of the substance in Haynes’s muffler. Once in a holding cell in the Philadelphia Post Office, Bond waived her constitutional rights and admitted to taking the chemicals from Rohm and Haas. The police executed a search warrant of Bond's home and discovered chemicals as well as Haynes’s mail. A grand jury charged Bond with two counts of possession and use of a chemical weapon in violation of 18 U.S.C. § 229(a)(1), which implements American obligations under the Chemical Weapons Convention of 1993. Bond was also charged with two counts of mail theft in violation of 18 U.S.C. § 1708. Bond moved to dismiss the chemical weapons charges, arguing that Section 229(a)(1) is unconstitutional because it violates principles of federalism and the guarantee of fair notice under the Due Process Clause. The Eastern District of Pennsylvania denied the motion. Bond also argued that the search of her home was illegal, but the court held that there was probable cause for the search Bond then pled guilty to all charges. At sentencing, the court increased her charges by two levels under U.S.S.G. § 3B1.3, and sentenced her to six years imprisonment.

Bond appealed to the Third Circuit Court of Appeals on the grounds that 18 U.S.C. § 229(a)(1) violates the Tenth Amendment as an unconstitutional intrusion of federal power into areas of state sovereignty. The court rejected the Tenth Amendment claim on the grounds that Bond lacked standing as a private party to claim that the federal government had impinged on state sovereignty.

Bond appealed to the Supreme Court, arguing that the Third Circuit was incorrect in concluding that she did not have standing to sue for an infringement of state sovereignty under the Tenth Amendment, and the Court granted certiorari on October 12, 2010. . After certiorari was granted, the Department of Justice reversed its position and conceded that the Third Circuit’s decision on standing was incorrect. The Court appointed Stephen R. McAllister to defend the decision of the Third Circuit.

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Discussion

The Supreme Court’s decision in this case will determine whether a private party can challenge a federal statute on the grounds that it violates the Tenth Amendment. The decision may also affect the bounds of Congress’s authority to enact laws implementing obligations of treaties entered into by the President.

Scope of the Treaty Power

Emphasizing the uniqueness of the Treaty Power under Article II of the Constitution, Stephen R. McAllister, the counsel appointed to defend the judgment, argues that giving third parties standing to challenge the constitutionality of laws passed pursuant to the Treaty Power would unnecessarily interfere with the sensitive areas of national interest in which the Treaty Power is normally used. McAllister notes that in entering treaty obligations, both the President and the Senate make decisions based on delicate foreign policy choices that directly affect the national interest. Because these decisions are so important and create obligations between the United States and foreign powers, McAllister argues that individuals should not be able to challenge such determinations by the political branches of the government in court. Allowing standing, McAllister contends, would diminish the federal government’s power to act on the world stage and influence foreign affairs.

On the other hand, the Eagle Forum Education and Legal Defense (“Eagle Forum”) cautions that an adoption of McAllister’s argument could, in practice, make all statutes passed pursuant to treaty obligations free from constitutional challenge. Eagle Forum argues that, like all other federal statutes, statutes passed to implement treaty obligations are subject to constitutional checks and principles of federalism. Eagle Forum contends that these checks were written into the Constitution to protect the people, and that people should therefore have standing to challenge federal laws under the Tenth Amendment, even if the law was passed pursuant to a treaty obligation. If the Court were to rule differently, Eagle Forum argues, the federal government would have a freer hand, at least when passing laws pursuant to a treaty, in encroaching on matters that have traditionally been handled by the states.

Federalism Concerns

Alabama and six other states (“States”) argue that the ability of criminal defendants to challenge a federal rule on state sovereignty grounds is an important check on the federal government. The States argue that some states acquiesce to federal intrusions to gain financial rewards, while other states may lack the ability to challenge every federal intrusion on their sovereignty, and therefore individuals have an important role in challenging federal encroachments on states’ rights.

McAllister does not envision a role for private individuals in challenging laws passed pursuant to treaties on Tenth Amendment grounds. He further suggests that federal statutes created under the Treaty Power might not even be proper for the judiciary to examine because of the political nature of such treaty decisions and because of the delicate foreign policy concerns that treaties implicate. McAllister contends that allowing Bond to bring this claim might result in the judiciary expressing a lack of respect for the other branches of government, and might embarrass the United States on the international level.

The Rights of Private Parties to Sue for Violations of the Tenth Amendment

The United States argues that a ruling in favor of Bond would protect the rights of criminal defendants to challenge the validity of a federal statute. The United States contends that because an unconstitutional federal statute under which a criminal defendant is convicted always harms the defendants, the defendant should have standing to challenge the law, even under the Tenth Amendment.

On the other hand, McAllister believes the government’s position would allow private parties to essentially defend the rights of another party – here the state – in federal court. McAllister argues that the Court should rule against standing here to protect the rights of third parties that are not present in court to argue their case, as the third parties are in the best position to advocate for their own rights.

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Analysis

The meaning of a single sentence in Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939), is a key issue in this case. Bond argues that the sentence stands for a special standing rule that applies only to Tenth Amendment standing claims. Bond then argues that that special standing rule is not currently good law. McAllister states that the sentence in Tennessee Electric is still good law because it is a part of a more general rule that third parties cannot assert the legal rights of others.

Special Rule or Continuation of Modern Standing Law?

Bond argues that this case is governed by modern standing law, which focuses on three factors: injury-in-fact, causation, and redressability. Bond argues that she suffered an injury-in-fact because she has been convicted and imprisoned for a violation of the statute she alleges is unconstitutional. Bond further argues that the reason she is in prison was caused by a violation of the statute. Finally, Bond argues that a ruling in her favor would result in redress – her being released from prison. Bond asserts that she would clearly have standing if the Court applies this modern formulation of standing law.

This approach, Bond argues, was ignored in the lower courts, which, she contends, created a special standing rule for Tenth Amendment claims based on a passage in Tennessee Electric Power Co. v. Tennessee Valley Authority. The Tennessee Electric Court stated, “as we have seen there is no objection to the [Tennessee Valley Authority’s] operations by the states, and, if this were not so, the appellants, absent the states or their officers, have no standing in this suit to raise any question under the [Tenth] amendment.” This standing rule states that a private party lacks standing to pursue a Tenth Amendment challenge unless a state or its officers are a party to the litigation.

Bond urges the Court to reject a special standing rule for Tenth Amendment claims. First, Bond states that the special test may not be relevant anymore because Tennessee Electric was decided using a now abandoned “legal interest” test for standing. Additionally, Bond argues that the sentence should not be given the weight of binding precedent because it is not essential to the Tennessee Electric holding and the reasoning is difficult to apply in practice.

McAllister argues that Tennessee Electric is consistent to the current standing law, despite its articulation prior to the Court’s establishment of the modern law of standing. McAllister argues that Tennessee Electric is an extension of the well-established standing principle that third parties cannot assert the legal rights of others. McAllister argues that states are not allowed to bring claims on behalf of its citizens, and similarly, citizens should not be allowed to bring claims on behalf of the state. Because Bond is not the state, she cannot assert the state’s rights in this Tenth Amendment challenge.

Because McAllister frames Tennessee Electric as an extension of the third-party principle, a key issue is whether Bond’s case is indeed a Tenth Amendment claim. McAllister characterizes this case as a Tenth Amendment claim because the federal statute, 18 U.S.C. §229, was enacted through Congress’s Treaty Power, as implemented by the Necessary and Proper Clause, not Congress’s Article I § 8 enumerated powers. Furthermore, he argues, Bond explicitly argues that 18 U.S.C. §229 intrudes on state sovereignty and that the Tenth Amendment is a limitation on the Treaty Power. Because this is a Tenth Amendment claim, McAllister argues, a state must bring the suit because it affects the state’s sovereignty vis-à-vis that of the federal government and the rights of private parties like Bond are not directly implicated.

McAllister goes on to argue that the Treaty Power is unique and deserves a special standing rule. McAllister emphasizes that the plain meanings of several sections of the Constitution show that the Treaty Power is inherently federal and deserving of unique treatment in regards to standing.

The Tenth Amendment and Private Citizens

Bond not only argues that standing law has changed since Tennessee Electric but also that the Tenth Amendment’s role in constitutional structure has changed. Bond states that in 1939, when Tennessee Electric was decided, courts ignored the Tenth Amendment and expanded federal jurisdiction into traditionally state-dominated areas. Bond argues that the recent decisions in Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992), reflect a new view that the Tenth Amendment can be used to limit the scope Congress’s enumerated powers. Bond contends that those two recent decisions show that the Tenth Amendment is a tool designed to protect individuals from expanding federal jurisdiction and that individuals challenging the government must merely meet the basic modern standing requirements.

On the other hand, McAllister argues that the Tenth Amendment must protect the interests of states and not individuals. McAllister argues that states have a strong interest in controlling the litigation because Tenth Amendment cases affecting federal-state relationships have significant consequences to states. Furthermore, McAllister asserts that states may be negatively affected if citizens are allowed to bring claims on behalf of the state because those decisions litigated by citizens would have stare decisis effect on the states. States may not support the result from a privately-litigated case but would still be forced to abide by those decisions. McAllister also asserts that allowing Tenth Amendment cases would increase federal courts’ case burdens. Finally, McAllister argues that private citizens have alternative methods of asserting their rights, such as petitioning their state governments and participating in the state’s political process.

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Conclusion

The Supreme Court must determine whether a private party has standing to bring a claim under the Tenth Amendment. Bond argues that she should not be deprived of her liberty based on a statute that violates the principles of federalism and state sovereignty guaranteed in the Tenth Amendment. Stephen McAllister counters that as a criminal defendant and not a state party, Bond lacks standing to bring a claim under the Tenth Amendment, because the Tenth Amendment affects the relationship between the federal government and the states, not between the federal government and private individuals. The Court’s decision will likely impact the scope of the Treaty Power and Congress’s authority to enact laws to implement treaty obligations. Most importantly, the Court will determine whether a private individual may argue in federal court that a federal statute violates the Tenth Amendment.

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