States Rights and 10th Amendment before the Supreme Court
by Mike Crane
While it is receiving very little attention the 10th Amendment is being tested in a case currently before the Supreme Court (See Bond v. United States, 131 S. Ct. 455 (2010)). Not only will this case in some way, “redefine” the current day meaning of the 10th Amendment – it is also an excellent example of the “warnings” of the Anti-Federalists.
A summary of the question at hand:
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.
Now let’s look at the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Emphasis added]
Hmmm, unless I am just way out of date it seems that this amendment says, “or to the people.” The 3rd Circuit Appeals court ruled that this did not apply to the Lady in question. Now to a casual objective observer Mrs. Bond would probably look like a “people” even if she does have a bad temper so to speak. But if the Supreme Court happens to agree with the 3rd Circuit Appeals court, for legal purposes under the 10th Amendment, Mrs. Bond and all of ya’ll will no longer be considered “people.”
The case is certainly out of the ordinary:
Carol Anne Bond is a trained microbiologist, who worked as a technical assistant at Rohm and Haas. See United States v. Bond, 581 F.3d 128, 132 (3rd Cir. 2009). Bond’s best friend, Myrlinda Haynes, became pregnant, and Bond discovered that the father of the child was her husband, Clifford Bond. See id. After this discovery, Carol Anne Bond began to spread chemicals around Haynes’s home, including on doorknobs, on car door handles, and in her mailbox. See id. at 133. Bond continued spreading chemicals over several months, doing so on at least twenty-four occasions. See id. She had stolen the chemical 10-chloro-10H-phenoxarsine from her employer and ordered a vial of potassium dichromate on the Internet. See id. at 132. Haynes discovered the chemicals in most cases and avoided harm, but in one case she burned her thumb. See id. at 133.
Haynes complained to the police about the chemicals, and the police suggested that she wipe door handles clean before using them in the future. See Bond, 581 F.3d at 133. Haynes then took the matter to the United States Postal Inspection Service (USPIS) and reported the presence of chemicals on her mailbox. See id. The postal inspectors placed surveillance cameras on Haynes’s property, and caught Bond taking a business envelope out of Haynes’s mailbox and placing potassium dichromate in Haynes’s car muffler. See id. The postal inspectors traced the potassium dichromate to a storage center at Rohm and Haas. See id.
The police obtained an arrest warrant for Bond based on the videos, the missing chemicals at Rohm and Haas, and a chemical analysis of the substance in Haynes’s muffler. See Bond, 581 F.3d at 133. Once in a holding cell in the Philadelphia Post Office, Bond waived her constitutional rights and admitted to taking the chemicals from Rohm and Haas. See id. The police executed a search warrant of Bond’s home and discovered chemicals as well as Haynes’s mail. See id. A grand jury charged Bond with two counts of possession and use of a chemical weapon in violation of 18 U.S.C. § 229(a)(1), which implements American obligations under the Chemical Weapons Convention of 1993. See id. Bond was also charged with two counts of mail theft in violation of 18 U.S.C. § 1708. See id. Bond moved to dismiss the chemical weapons charges, arguing that Section 229(a)(1) is unconstitutional because it violates principles of federalism and the guarantee of fair notice under the Due Process Clause. See id. at 133–34. The Eastern District of Pennsylvania denied the motion. See id. Bond also argued that the search of her home was illegal, but the court held that there was probable cause for the search See id. Bond then pled guilty to all charges. See id. At sentencing, the court increased her charges by two levels under U.S.S.G. § 3B1.3, and sentenced her to six years imprisonment. See id.
Bond appealed to the Third Circuit Court of Appeals on the grounds that 18 U.S.C. § 229(a)(1) violates the Tenth Amendment as an unconstitutional intrusion of federal power into areas of state sovereignty. See id. at 136–38. The court rejected the Tenth Amendment claim on the grounds that Bond lacked standing as a private party to claim that the federal government had impinged on state sovereignty. See id. at 136.
Bond appealed to the Supreme Court, arguing that the Third Circuit was incorrect in concluding that she did not have standing to sue for an infringement of state sovereignty under the Tenth Amendment, and the Court granted certiorari on October 12, 2010. See Bond v. United States, 131 S. Ct. 455 (2010). After certiorari was granted, the Department of Justice reversed its position and conceded that the Third Circuit’s decision on standing was incorrect. See Adam Liptak, New York Times, A 10th Amendment Drama Fit for Daytime TV Heads to the Supreme Court. The Court appointed Stephen R. McAllister to defend the decision of the Third Circuit. See Bond Counsel Appointment Order (Nov. 10, 2010).
Here is the aspect of this case that has far reaching implications:
The Supreme Court’s decision in this case will determine whether a private party can challenge a federal statute on the grounds that it violates the Tenth Amendment. The decision may also affect the bounds of Congress’s authority to enact laws implementing obligations of treaties entered into by the President.
Scope of the Treaty Power
Emphasizing the uniqueness of the Treaty Power under Article II of the Constitution, Stephen R. McAllister, the counsel appointed to defend the judgment, argues that giving third parties standing to challenge the constitutionality of laws passed pursuant to the Treaty Power would unnecessarily interfere with the sensitive areas of national interest in which the Treaty Power is normally used. See Brief for Amicus Curiae Appointed to Defend Judgment Below (“Appointed Counsel”) at 41. McAllister notes that in entering treaty obligations, both the President and the Senate make decisions based on delicate foreign policy choices that directly affect the national interest. See id. Because these decisions are so important and create obligations between the United States and foreign powers, McAllister argues that individuals should not be able to challenge such determinations by the political branches of the government in court. See id. Allowing standing, McAllister contends, would diminish the federal government’s power to act on the world stage and influence foreign affairs. See id.
On the other hand, the Eagle Forum Education and Legal Defense (“Eagle Forum”) cautions that an adoption of McAllister’s argument could, in practice, make all statutes passed pursuant to treaty obligations free from constitutional challenge. See Brief for Amicus Curiae Eagle Forum Education and Legal Defense in Support of Petitioner at 11, 13. Eagle Forum argues that, like all other federal statutes, statutes passed to implement treaty obligations are subject to constitutional checks and principles of federalism. See id. at 11–13. Eagle Forum contends that these checks were written into the Constitution to protect the people, and that people should therefore have standing to challenge federal laws under the Tenth Amendment, even if the law was passed pursuant to a treaty obligation. See id. at 4–5. If the Court were to rule differently, Eagle Forum argues, the federal government would have a freer hand, at least when passing laws pursuant to a treaty, in encroaching on matters that have traditionally been handled by the states. See id.
Alabama and six other states (“States”) argue that the ability of criminal defendants to challenge a federal rule on state sovereignty grounds is an important check on the federal government. See Brief of Amici Curiae the States of Alabama, et al. in Support of Petitioner at 25. The States argue that some states acquiesce to federal intrusions to gain financial rewards, while other states may lack the ability to challenge every federal intrusion on their sovereignty, and therefore individuals have an important role in challenging federal encroachments on states’ rights. See id. at 27–28.
So this case is another example of how the power of the central government changes step by step. Most steps are in the direction of more power, because once assumed it is very difficult to take back.
Sadly only six States have filed briefs in support of the 10th Amendment and these do not include Georgia. But if the Supreme Court rules that Treaties over rule the 10th Amendment, will the same follow eventually for the 1st and 2nd amendment? Of course they will, it is only a matter of time and circumstance.
As has been proven time and time again, whenever the three branches of the central government are of a like mind, the power of the central government is increased. This all dates back to May 30, 1787 when the Constitutional Convention of 1787 debated and voted on the form of government they would report back to the Congress. Quoting from the historical record of the Convention Mr. Morris (delegate from Pennsylvania) summarized where they were headed (See: What is States Rights – Part 5):
Mr. Govr. Morris explained the distinction between a federal and national, supreme, Govt.; the former being a mere compact resting on the good faith of the parties; the latter having a compleat and compulsive operation. He contended that in all Communities there must be one supreme power, and one only.
Just as the recent Supreme Court 2nd Amendment ruling chipped away at States Rights and increased the power of the central government under the 14th Amendment, hope and pray that the same does not happen with this case.
If the Anti-Federalists were right, if our Confederate forefathers were right, the end result is inevitable. The out of control growth of the central government for the last 200 years demonstrates that they were right and thus the importance of political correctness to those who will ultimately destroy American Liberty.
As a final comment I wasn’t aware that the Post Office had “holding cells.” Reference the following from above:
Once in a holding cell in the Philadelphia Post Office,
Wonder how many post offices have holding cells and how much these raise our postal rates? What other federal agencies have “holding cells?” Watch out when the IRS starts getting these! With the passage of the recent food bill, will the Department of Agriculture have "holding cells" for what were previously called "people" who grow vegetables at home?
Ridiculous? Well read the warnings of the Anti-Federalists. Make a list of their "warnings" and check off the ones that have come true. Make a list of what the Federalist Papers said would not happen and cross off all that have actually happened. The results of this exercise are very educational. The alternative is to continue to believe a "fairy tale!"