564 U.S. 211 (2011), 09-1227, Bond v. United States

Docket Nº:09-1227
Citation:564 U.S. 211, 131 S.Ct. 2355, 180 L.Ed.2d 269, 79 U.S.L.W. 4490, 22 Fla.L.Weekly Fed. S 1156
Opinion Judge:Kennedy, Justice.
Attorney:Paul D. Clement argued the cause for petitioner. Michael R. Dreeben argued the cause for respondent, supporting petitioner. Stephen R. McAllister argued the cause as amicus curiae, by special leave of court, supporting the judgment below.
Judge Panel:Kennedy, J., delivered the opinion for a unanimous Court. Ginsburg, J., filed a concurring opinion, in which Breyer, J., joined, post, p.226. Justice Ginsburg, with whom Justice Breyer joins, concurring.
Case Date:June 16, 2011
Court:United States Supreme Court

Page ___

___ U.S. ___ (2011)

131 S.Ct. 2355




No. 09-1227

United States Supreme Court

June 16, 2011

Argued February 22, 2011.


[131 S.Ct. 2357] Syllabus [*]

When petitioner Bond discovered that her close friend was pregnant by Bond's husband, she began harassing the woman. The woman suf­fered a minor burn after Bond put caustic substances on objects the woman was likely to touch. Bond was indicted for violating 18 U.S.C. §229, which forbids knowing possession or use, for nonpeaceful purposes, of a chemical [131 S.Ct. 2358] that "can cause death, temporary incapacitation or permanent harm to humans, " §§229(a); 229F(1); (7); (8), and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States. The District Court denied Bond's motion to dismiss the §229 charges on the ground that the statute exceeded Congress' constitutional authority to enact. She en­tered a conditional guilty plea, reserving the right to appeal the rul­ing on the statute's validity. She did just that, renewing her Tenth Amendment claim. The Third Circuit, however, accepted the Gov­ernment's position that she lacked standing. The Government has since changed its view on Bond's standing.


Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States. Pp. 2360 - 2367.

(a) The Third Circuit relied on a single sentence in Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543. Pp. 2360 - 2364.

(1) The Court has disapproved of Tennessee Electric as authorita­tive for purposes of Article III's case-or-controversy requirement. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-154, 90 S.Ct. 827, 25 L.Ed.2d 184. Here, Article III's standing requirement had no bearing on Bond's capacity to assert defenses in the District Court. And Article III's prerequisites are met with regard to her standing to appeal. Pp. 2360 - 2362.

(2) Tennessee Electric is also irrelevant with respect to prudential standing rules. There, the Court declined to reach the merits where private power companies sought to enjoin the federally chartered Tennessee Valley Authority (TVA) from producing and selling electric power, claiming that the statute creating the TVA exceeded the Na­tional Government's powers in violation of the Tenth Amendment. In doing so, the Court repeatedly stated that the problem with the power companies' suit was a lack of "standing" or a "cause of action, " treating those concepts as interchangeable. E.g., 306 U.S., at 139, 59 S.Ct. 366. The question whether a plaintiff states a claim for relief typically "goes to the merits" of a case, however, not to the dispute's justiciability, Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 92, 118 S.Ct. 1003, 140 L.Ed.2d 210, and conflation of the two concepts can cause confusion. This happened with Tennessee Electric's Tenth Amendment discussion. The state­ment on which the Third Circuit relied here, see 306 U.S., at 144, 59 S.Ct. 366, should be read to refer to the absence of a cause of action for injury caused by economic competition. To the extent the statement might instead be read to suggest a private party does not have standing to raise a Tenth Amendment issue, it is inconsistent with this Court's later precedents and should be deemed neither controlling nor in­structive on the issue of standing as that term is now defined and ap­plied. Pp. 2362 - 2364.

(b) Amicus, appointed to defend the judgment, contends that for Bond to argue the National Government has interfered with state sovereignty in violation of the Tenth Amendment is to assert only a State's legal rights and interests. But in arguing that the Govern­ment has acted in excess of the authority that federalism defines, Bond seeks to vindicate her own constitutional interests. Pp. 2363-2367.

(1) Federalism has more than one dynamic. In allocating powers between the States and National Government, federalism " 'secures to citizens the liberties that derive from the diffusion of sovereign power, ' " New York v. United States, 505 U.S. 144, 181, 112 S.Ct. 2408, 120 L.Ed.2d 120. It enables States to enact positive law in [131 S.Ct. 2359] response to the initiative of those who seek a voice in shaping the destiny of their own times, and it protects the liberty of all persons within a State by ensuring that law enacted in excess of delegated governmental power cannot direct or control their actions. See Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410. Federalism's limitations are not therefore a matter of rights belonging only to the States. In a proper case, a litigant may challenge a law as en­acted in contravention of federalism, just as injured individuals may challenge actions that transgress, e.g., separation-of-powers limita­tions, see, e.g., INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317. The claim need not de­pend on the vicarious assertion of a State's constitutional interests, even if those interests are also implicated. Pp. 2363-2366.

(2) The Government errs in contending that Bond should be permitted to assert only that Congress could not enact the challenged statute under its enumerated powers but that standing should be de­nied if she argues that the statute interferes with state sovereignty. Here, Bond asserts that the public policy of the Pennsylvania, en­acted in its capacity as sovereign, has been displaced by that of the National Government. The law to which she is subject, the prosecu­tion she seeks to counter, and the punishment she must face might not have come about had the matter been left for Pennsylvania to de­cide. There is no support for the Government's proposed distinction between different federalism arguments for purposes of prudential standing rules. The principles of limited national powers and state sovereignty are intertwined. Impermissible interference with state sovereignty is not within the National Government's enumerated powers, and action exceeding the National Government's enumerated powers undermines the States' sovereign interests. Individuals seek­ing to challenge such measures are subject to Article III and pruden­tial standing rules applicable to all litigants and claims, but here, 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 the Government. Pp. 2365 - 2367.

(c) The Court expresses no view on the merits of Bond's challenge to the statute's validity. P. 2367.

581 F.3d 128, reversed and remanded.

Kennedy, J., delivered the opinion for a unanimous Court. Gins-burg, J., filed a concurring opinion, in which Breyer, J., joined.

Paul D. Clement, Washington, DC, for Petitioner.

Michael R. Dreeben, for Respondent.

Stephen R. McAllister, as amicus curiae, appointed by this Court, supporting the judgment below.

Neal Kumar Katyal, Acting Solicitor General, Washington, D.C., for Respondent, supporting Petitioner.

Robert E. Goldman, Robert E. Goldman LLP, Fountainville, PA, Paul D. Clement, Ashley C. Parrish, Candice Chiu, Paul A. Mezzina, King & Spalding LLP, Washington, DC, Eric E. Reed, Fox Rothschild LLP, Philadelphia, PA, for Petitioner.

Neal Kumar Katyal, Acting Solicitor General, David S. Kris, Lanny A. Breuer, Assistant Attorneys General, Roy W. McLeese III, Acting Deputy Solicitor General, Nicole A. Saharsky, Assistant to the Solicitor General, John F. De Pue, Kirby A. Heller, Virginia M. Vander Jagt, Washington, D.C., for United States supporting Petitioner.

[131 S.Ct. 2360] OPINION

Kennedy, Justice.

This case presents the question whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.

The indicted defendant, petitioner here, sought to argue the invalidity of the statute. She relied on the Tenth Amendment, and, by extension, on the premise that Congress exceeded its powers by enacting it in contravention of basic federalism principles. The statute, 18 U.S.C. §229, was enacted to comply with a treaty; but petitioner contends that, at least in the present instance, the treaty cannot be the source of congressional power to regulate or prohibit her conduct.

The Court of Appeals held that because a State was not a party to the federal criminal proceeding, petitioner had no standing to challenge the statute as an infringement upon the powers reserved to the States. Having concluded that petitioner does have standing to challenge the federal statute on these grounds, this Court now reverses that determination. The merits of petitioner's challenge to the statute's validity are to be considered, in the first instance, by the Court of Appeals on remand and are not addressed in this opinion.


This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After dis­covering that her close friend was pregnant and that the father was Bond's husband, Bond sought revenge. Bond subjected the woman...

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