S.Ct.: Criminal Defendant has prudential standing to raise federalism defense

The Supreme Court unanimously held that a defendant has prudential standing to challenge a conviction by challenging its constitutionality under the Tenth Amendment. Bond v. U.S., No. 09-1227, 131 S.Ct. 2355, 79 USLW 4490 (June 16, 2011). Justice Kennedy wrote for the Court; in addition, Justice Ginsburg filed a concurrence, which Justice Breyer joined.

Carol Anne Bond placed caustic substances on surfaces that her friend was likely to touch (and did touch) as an act of revenge. Among other charges, the District Court for the Eastern District of Pennsylvania indicted Bond for two counts of violating 18 U.S.C. §229, which prohibits the use of certain types of harmful chemicals for non-peaceful purposes. The federal statute implements the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 1997, which the U.S. has ratified.

Bond entered a conditional guilty plea, reserving the right to challenge the statute’s validity, and ended up doing so on the basis of the Tenth Amendment in the Third Circuit. The Court requested supplemental briefs as to whether she had standing to bring the suit, since the state of Pennsylvania was not involved in the case. The Government argued that she did not have standing, and the Third Circuit agreed. After Bond sought certiorari, the Government changed its position, so the instant Court appointed an amicus curiae to defend the lower court’s judgment.

The Supreme Court ruled unanimously that Bond has prudential standing to challenge 18 U.S.C. §229 on Tenth Amendment grounds. In doing so, it first resolved a circuit split about the interpretation of the following statement from Tennessee Elec. Power Co. v. TVA: “As we have seen there is no objection to the 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] [A]mendment” (306 U.S. 118, 144, (1939)). The Court clarified that “standing” in Tennessee Electric meant that the petitioners did not have a cause of action, rather than that they were not appropriate parties for filing a Tenth Amendment challenge. It articulated the distinction that “standing,” in its current usage, is about justiciability, whereas the existence of a claim for relief “goes to the merits.”

To justify Bond’s prudential standing, the Court noted that, in addition to protecting states against the federal government, federalism in Tenth Amendment also “secures to citizens the liberties that derive from the diffusion of sovereign power” (New York v. U.S., 505 U.S. 144, 181 (1992)). Citing Gregory v. Ashcroft, it specified that individuals’ freedoms include allowing them access to state, as well as federal, lawmaking, and, in the instant case, by protecting them from federal laws that exceed the federal government’s authority (501 U.S. 452, 458 (1991)). The Court found it sufficient that Bond was asserting her own constitutional rights, drawing a parallel to INS v. Chadha, 462 U.S. 919 (1983), and other cases  in which an individual challenged the balance between branches of the federal government.

Although the Government had changed its position about Bond’s standing, the Court rejected its qualification that an individual has standing only when she does not state a claim directly implicating state sovereignty, in addition to or instead of other claims that the statute is not within Congress’ enumerated powers. Instead, the Court decided that prudential standing is not affected by an “objection that her injury results from disregard of the federal structure of our Government.”

In concluding that Bond met prudential standing requirements, the Court did not decide whether the Tenth Amendment is a “truism” or “has independent force of its own.”  The Court explained that “where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government.”

Justice Ginsburg’s concurrence appeared to assert greater protections for defendants than the Court did, claiming that “a court has no ‘prudential’ license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct.”


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