Last month, a unanimous U.S. Supreme Court decision held that a Pennsylvania woman named Carol Bond can challenge a federal law under which she was prosecuted, on grounds that Congress had exceeded its powers and intruded upon the sovereignty and authority of the states.
Until Bond v. United States, it was widely agreed that only states could advance such a claim. In fact, the federal government had taken that position in the courts below in Bond, changing course when the case reached the Supreme Court, where it agreed that Bond indeed has “standing” to sue.
Now a case about standing might seem like small beer. Yet this one is important for what it says about federalism as we await the Supreme Court’s encounter, as early as next year, with the health care overhaul’s individual mandate, which requires most Americans to buy health insurance.
Bond, finding that a close friend had become pregnant by her husband, opened a revenge campaign against the woman that involved putting caustic substances on places she would likely touch, such as her mailbox and car door handle. The woman suffered a minor burn on her hand. For this, Bond could have been held liable under ordinary criminal laws. Instead, she was prosecuted under a law passed to implement a 1997 treaty designed to prevent the spread of chemical weapons.
Bond claimed the law went beyond what the enumerated powers vested in Congress by the Constitution allow. Necessarily, her position rested on the 10th Amendment, which provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the states respectively, or to the people.”
In rejecting the view that only states can sue to enforce federalism, the Supreme Court, with Justice Anthony Kennedy writing, said individuals have their “own constitutional interests” in avoiding injuries from laws exceeding congressional authority. “Unconstitutional action,” Kennedy wrote, “can cause concomitant injury to persons in individual cases” — just as Bond claims happened in her case. “Her rights in this regard do not belong to a State.”
Bond will now have her case heard. Meanwhile, it is possible other federal laws will be challenged by individuals claiming injury from “unconstitutional action” — meaning action said to exceed the powers vested in Congress.
The court’s position on Bond’s standing reflects its understanding of federalism. For example, federalism preserves “the initiative of [individuals] who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power.”
It’s hard to read Bond without thinking about the lawsuits challenging Obamacare’s individual mandate. Here, too, the claim is that Congress went beyond its proper authority. Notably, Kennedy’s opinion makes the point that “laws enacted in excess of delegated governmental power” are problematic if they “direct or control” the actions of individuals, for then their “liberty is at stake.”
One can expect this and other portions of Bond will be quoted to the court when it reviews the individual mandate.
Terry Eastland is the publisher of The Weekly Standard, where this article first appeared.