“Fidelity to principles of federalism is not for the States alone to vindicate”

Today the U.S. Supreme Court handed down a unanimous opinion in Bond v. United States, holding that an individual indicted for violating a federal law has standing to raise federalism-based challenges to the relevant statute.  The outcome of this case was not much in doubt, as the federal government had conceded that the judgment of the U.S. Court of Appeals for the Third Circuit was in error.  Nonetheless, the Bond decision is interesting insofar as Justice Kennedy’s opinion for a unanimous Court restates some important federalism principles and rejects any prudential limitations on individual standing to raise federalism claims.

The facts of this case are somewhat infamous; it’s not often someone is indicted for using “chemical weapons” against her husband’s lover.  Carol Anne Bond was quite upset when she discovered that a “close” friend of hers was pregnant with Mr. Bond’s child.  She was so upset that she began harassing the friend, and secretly placed “caustic substances” on things her friend was likely to touch (e.g. door handles, he mail box, etc.).  For these acts Bond was indicted for violating a federal statue barring the possession or use dangerous chemicals.  This statute, in turn, was enacted to implement an international treaty governing chemical weapons.

Bond argued that the relevant statute exceeded the scope of federal power by impermissibly intruding upon matters left to the states.  As initially framed, Bond’s argument seemed to rest solely on the Tenth Amendment, and the idea that criminalizing local non-economic conduct intrudes upon state sovereignty.  Before the Third Circuit, the federal government argued Bond lacked standing to raise such claims herself in the absence of a state litigant.  When Bond filed a petition for certiorari, however, the federal government confessed error, acknowledging Bond had standing to raise federalism challenges to the statute under which she was charged.  The Court accepted certiorari nonetheless, as there was a circuit split on this question, and appointed an amicus to defend the judgment below.

In his opinion for the Court, Justice Kennedy cast aside an old, unclear, and since-undermined precedent upon which the Third Circuit had relied (Tennessee Electric Power Co. v. TVA (1939)) and the government’s arguments that there should be any prudential limitations on individual standing to raise federalism based claims.  So long as the individual is seeking to vindicate her own constitutional interests — in this case, Bond’s interest in not being convicted of violating a statute in excess of the federal government’s constitutional authority — that the claim rests on state sovereignty does not matter.  Federalism, after all, is about protecting individual liberty, not state interests as such. Wrote Kennedy:

Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. State sovereignty is not just an end in itself: Rather, federalism secures to scitizens the libertie that derive from the diffusion of sovereign power. [Internal quotations and citations omitted.] . . .

Federalism secures the freedom of the individual. . . .

An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of thos laws causes injury that is concrete, particular, and redressable.  Fidelity to principles of federalism is not for the States alone to vindicate. . . .

If the constitutional structure of our Government that protects individual liberty is compromised, individuals who suffer otherwise justiciable injury may object.

Justice Kennedy went on to make clear that it does not matter whether the individual’s claim is styled as an enumerated powers or state sovereignty-based claim.  In either case, there is an individual interest in not being subject to federal action that transgresses federalism constraints.  On this basis, the Court reversed and remanded the Third Circuit’s decision for consideration of Bond’s challenge to the statute under which she was charged.

Justice Ginsburg also wrote a concurring opinion, joined by Justice Breyer, emphasizing the point that “Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law, and that there is no prudential barrier to the consideration of such claims.

UPDATE: More from Josh Blackman and Ilya Shapiro.