June 16, 2011

Bond v. United States: citizens can raise Tenth Amendment arguments

By Bond v. United States: citizens can raise Tenth Amendment arguments

Author: Timothy Sandefur

The Supreme Court today issued a decision in Bond v. United States, a case in which PLF did not participate, but which we’ve been watching closely because of its possible implications for the Obamacare cases. The question in this case was whether individual citizens are allowed to argue (that is, have standing to argue) that a federal law violates the Tenth Amendment and intrudes on powers reserved to the states. Some old precedent held that such arguments could only be raised by states. And that’s important in the Obamacare cases because there’s serious doubt whether the state of Virginia has standing to challenge the constitutionality of the Individual Mandate. If citizens can’t raise Tenth Amendment arguments, then that would mean that only Virginia could challenge the Mandate as violating the Tenth Amendment.

The Bond case involved a woman who—in a bizarre set of facts—tried to poison the rival for her husband’s affection by painting the Jezebel’s mailbox with a toxic chemical. She was convicted of a federal crime, which she argued Congress had no authority to make criminal. That federal law, she argued, intruded on powers reserved to the states by the Tenth Amendment. The Court of Appeals held she couldn’t make that argument, but the Supreme Court today unanimously reversed that, in an opinion by Justice Kennedy. Tenth Amendment arguments are like any other legal arguments and a person who has standing to raise any other kind of legal argument can also raise a Tenth Amendment argument: “Bond seeks to vindicate her own constitutional interests. The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a state.”

The federalist system “has more than one dynamic.” Although it grants and restricts the powers of the states and the federal government, thereby preserving “the integrity, dignity, and residual sovereignty of the states,” this is only “in part” an “end in itself,” because it both “secures the freedom of the individual” and “allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power." (Justice Kennedy is very fond of destiny.) In short, “the individual liberty secured by federalism is not simply derivative of the rights of the States.”

This decision is a good one for enforcement of the Tenth Amendment (assuming such a thing is still possible under current law), but it may be bad for Virginia’s standing in its Obamacare lawsuit. While I think Virginia still has a strong argument for standing regardless, the lower courts may interpret this as meaning that individual plaintiffs have sufficient alternative ways of raising arguments against the Individual Mandate. As we noted here, Virginia is suing to vindicate its own rights, which it should still have the ability to do. But one of the additional reasons we offered in our brief is that individuals might be barred from bringing similar arguments, and that reason is now defunct.

Update: The Virginia Attorney General has filed a letter with the Fourth Circuit about the Bond decision:

[T]he Court observed that when a private litigant is injured, prudential standing does not prevent her from challenging Congress’s authority to enact a law. As the Court put it, the litigant “is not forbidden to object that her injury results from disregard of the federal structure of our Government.” In Bond, the Court noted that, germane to the plaintiff’s standing, is the fact that “[t]he public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government.” If an individual can defend the displaced public policy of a state, then a fortiori a state can do so. Indeed, the Court recognized that in some instances “a State is the only entity capable of demonstrating the requisite injury.” Bond provides strong support for Virginia’s standing to challenge Congress’s authority to enact an individual mandate and penalty that purport to override Virginia law and policy.

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