By Mike Dorf
Yesterday the Supreme Court heard oral argument in Bond v. United States, in which the petitioner was charged with violating a federal statute forbidding the possession or use of chemical weapons. The statute was enacted to implement a multilateral treaty--the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction. Yet Bond was charged with a garden-variety attempted poisoning: She left toxic chemicals on surfaces used by her former friend, who had been impregnated by Bond's husband. On the merits, Bond argues that insofar as it reaches the sort of local conduct ordinarily regulated by state law, the statute goes beyond the bounds of the treaty power, and is thus invalid.
The Third Circuit Court of Appeals did not permit Bond to challenge the statute's constitutionality because she was making a 10th Amendment argument. The 10th Amendment protects states, not individuals, the appeals court said, and therefore, Bond's argument was an impermissible effort to get the federal courts to adjudicate a third-party claim. The Justice Department thought the third-party standing objection was indefensible, and so did not defend it in the Supreme Court. As I explained at the time the Court granted cert, the third-party standing objection is, to my lights, just downright mistaken, and so the Justice Dep't made the right call.
Nonetheless, perhaps the Justices thought there was something to the third-party objection, because rather than summarily vacating the Third Circuit decision and remanding for consideration on the merits, as urged by the government, the Court enlisted attorney (and former law professor) Stephen McAllister to make the argument against third-party standing. He did so in an able (but ultimately unpersuasive) brief. The core of his argument--which comes through more clearly in the brief than in the oral argument transcript--is that while a criminal defendant is permitted to argue that Congress lacked the affirmative power to adopt the law under which she is charged, she lacks third-party standing to make a "Tenth Amendment" claim.
Now, to anyone who bothers to read the text of the Tenth Amendment, McAllister's argument will come across as baffling. The Amendment states: "The 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." In other words, the actual content of the 10th Amendment is that Congress only has the powers enumerated in the Constitution. In short, based on the language of the Constitution, a 10th Amendment claim simply is an enumerated powers claim.
As it happens, however, the Supreme Court has interpreted the 10th Amendment as going beyond the proposition that the federal government only has enumerated powers. It has also held that the 10th Amendment sometimes restricts the means by which Congress may attempt to exercise one of its enumerated powers. Most prominently, in Printz v. United States and New York v. United States, the Court held that the 10th Amendment forbids the federal government from "commandeering" state executive and legislative officials.
Much of the oral argument in Bond focused on whether there was a principled basis for saying that while a criminal defendant can object to a statute on the ground that it exceeds Congress's enumerated powers, she cannot object to a statute on the ground that it commandeers the state or otherwise violates the 10th Amendment. Justice Kennedy and CJ Roberts were the strongest voices for the proposition that defendants should be permitted to raise both sorts of objections, and no Justice strongly supported the view--taken by the Solicitor General--that criminal defendants should be barred from raising anti-commandeering objections.
But here's the rub: Bond was not making an anti-commandeering or other exotic 10th Amendment claim. She was making a straightforward argument that Congress had acted beyond its enumerated powers. She says that neither the treaty power, the Commerce Power, nor any other power authorizes Congress to subject her to criminal prosecution for what was essentially a local act. To be sure, part of the reason why she thinks the statute exceeds the scope of enumerated Congressional power is that it invades the province of the states, but that's still an enumerated powers claim. In United States v. Lopez, for example, the fact that the federal statute concerned street crime and education--two areas of traditional state regulatory primacy--counted as reasons for finding that it exceeded the bounds of enumerated power under the Commerce Clause. During the oral argument, the best that McAllister could do was to say that the treaty power is different from the commerce clause because it is found in Article II rather than in Section 8 of Article I. But there is no reason why that should make any difference whatsoever. So regardless of what, if anything, the Court says about anti-commandeering claims, Bond should have standing to raise the objections she is actually raising.
Finally, I'll point to an irony of the case that perhaps someone else has already noted. Mr. McAllister was appointed to make an argument on behalf of the federal government even though the federal government does not want to make that argument. He then argued that private parties should not have third-party standing to make arguments on behalf of states when those states do not want to make the argument. One almost expects this argument to swallow itself or vanish in a puff of logic. I expect the next-best thing: a unanimous decision that Bond has standing.