June 16, 2011

Supreme Court Decides Bond v. United States

On June 16, 2011, the Supreme Court decided Bond v. United States, No. 09-1227, holding that a person indicted for violating a federal statute possesses standing to challenge its validity on the grounds that it exceeds Congress's authority and interferes with powers reserved to the States under the Tenth Amendment.

When Carol Ann Bond discovered that her close friend was pregnant, and that Bond's own husband was the father, she reacted violently and placed chemicals on surfaces her friend was likely to touch, leading to minor burns. Bond was indicted for violating 18 U.S.C. § 229, which forbids the use of chemicals that can permanently harm humans or animals where the use is not for a peaceful purpose.

As part of her defense, Bond argued that § 229 exceeded Congress's constitutional authority. The district court disagreed. On appeal to the Third Circuit, the government argued that Bond lacked standing to raise the Tenth Amendment and states' rights thereunder. The Third Circuit agreed with the government and affirmed. On certiorari to the Supreme Court, the government changed positions and concluded that Bond did have standing. The Supreme Court held that Bond had standing and reversed.

The Article III standing requirements for filing suit in federal court, wrote the Court, have no bearing on what defenses a person against whom relief is sought may raise. If the plaintiff has standing to sue, the defendant has standing to defend.

Turning to the concept of prudential standing, the Court held that "an 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." While it is true that federalism ensures that States exist as political entities in their own right, that is not its only function. It also exists to protect individual liberties by diffusing government power. Thus, just as individuals may have standing to challenge government action based on the violation of principles of separation of powers, see INS v. Chadha, 462 U.S. 919 (1983) (addressing the legislative veto), they also may have standing to object to laws "that upset the constitutional balance between the National Government and the States." This standing applies not just to arguments that Congress exceeded its enumerated powers, but also to arguments that Congress's action infringed on aspects of state sovereignty. The challenged law must of course cause injury to the individual making the challenge that is concrete, particular, and redressable. But if those requirements are met, the individual has standing to raise the federalism argument.

Justice Kennedy delivered the opinion for a unanimous Court. Justice Ginsburg filed a concurring opinion, in which Justice Breyer joined.

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