Legal Commentary

Cert. Grant in 10th Amendment Case

By David Kopel

Granted this morning, Bond v. United States. 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.? The circuits are split, and defendant was convicted in the 3d Circuit, which sua sponte used standing as the reason to refuse to consider her the defendant?s constitutional argument.

The underlying issue is whether, pursuant to the Chemical Weapons Convention, ratified by the Senate in 1997, Congress can criminalize any non-peacefu use of a toxic substance. Defendant argues that her particular use (to try to injure her husband?s mistress) was not within the reach of any enumerated congressional power.

Former Solicitor General Paul Clement filed the successful petition for a writ of certiorari.

A key issue in the case is this line from Tennessee Electric Power Corp. v. TVA (1939): that legal persons, ?absent the states or their officers, have no standing in this suit to raise any question under the amendment.? Some lower courts have treated this as dicta but others have not. Whether or not it?s dicta, the Supreme Court can repudiate or narrow it, and in my view, the Court should. If an individual is going to spend six years in federal prison, that individual should certainly be considered to have standing to challenge the constitutionality of the law under which she is being imprisoned.

Full post as published by The Volokh Conspiracy on October 12, 2010 (boomark / email).