Individual Standing to Enforce the Tenth Amendment

The unanimous opinion in Bond v. United States handed down by the United States Supreme Court June 16, 2011, may open federal courts to individuals to challenge federal statutes, such those against drugs, as unconstitutional infringements on individuals' rights and usurpations of Federal Power in realms reserved to the States under the Tenth Amendment to the Constitution.  This case is a turning point on Tenth Amendment and standing jurisprudence, and offers one of the first glimmers of hope since the Lopez case.

Note however, that it is only a reversal on the single issue of standing to challenge the statute, and thus a partial reversal of the precedent on standing in Frothingham v. Mellon, not on the merits of whether that statute is indeed unconstitutional. That finding remains to be made. Spread the word on this precedent. It needs to be cited often in other cases and in law review articles.

When I cite Frothingham I am referring not so much to that case alone as to the line of precedents built on it, including many misapplications and conflations, such as that between "failure to state a claim" ("frivolous"), and standing/justiciability. Justice Kennedy in this opinion tries to draw a line between those, although he also points out they are entangled.

But I don't think the reasoning in this case turns on whether the appellant was the defendant or the plaintiff, or whether it is a criminal or a civil case. Judicial doctrine recognizes that justiciability does not rest only on past injury, but also to the expectation of imminent injury. If not, then what is injunctive relief for?

So this case does seem to confer standing on individuals with either past or expected injury from the exercise of an undelegated power. The question then turns to whether the power has been delegated, and that takes us in most cases to the Commerce and Necessary and Proper clauses.

Reid v. Covert stands on the proposition that the government cannot acquire new powers, at least on U.S. soil, from a treaty. Agent B cannot acquire new powers from principal A by an agreement he might make with treaty partner C. He can only get powers from C, if C has the powers itself, and they must not conflict with his duties to A. That case did not overturn Missouri v. Holland, it appears, because the Court presumed the powers being exercised under that treaty were powers ("Commerce", N&P) that it had to exercise, which was not an issue before the Court. On remand in the Bond case it will be an issue, whether the lawyers know it or not.

I would argue that the power claimed in 18 USC 229 is not a power which Congress has authority to exercise on state soil, and therefore is not a power it may exercise under any treaty. As I have argued previously, the power "necessary and proper" cannot be determined without examining the qualifying phrase, "for carrying into execution", something that has apparently never been carefully done in any Supreme Court case, going back to McCulloch v. Maryland, which just took it as whatever was convenient to get a desired outcome. But from the common law rules of construction of delegated powers, the original understanding was not that a delegated power was to do whatever it might take to get a desired outcome. It was always only to make a certain kind of effort, which, if it did not avail, did not imply or authorize any larger power, or any new kind of power, especially a penal power.

And, to bring things down to common sense, the kind of stuff one could paint on a doorknob to harass someone is hardly a "chemical weapon" contemplated by the Treaty. Think overcompliance and void for vagueness.

So, for example, suppose Congress passed a statute regulating the shipment of flour. Under the Commerce Clause as originally understood, it could require that to be done in containers that would keep the contents dry, not be easily broken, labeled with the amount of flour it contains, and handled in a way that would avoid dispersing the contents (which can explode).

Under the Necessary and Proper clause Congress could authorize the leasing or erection of offices and inspection stations, the hiring of inspection agents and accountants, the publication of notices, forms, and reports, and various other incidentals of carrying the regulation into execution, that is, or making the effort.

Now suppose the inspectors needed some tool to conduct their inspections, perhaps some kind of scanner. Would that give Congress the authority to fund the development of such a tool for the private benefit of someone? The correct answer is no. It could develop the tool using its own personnel, or government contractors, but its only power to promote an art among private parties is to grant a monopoly for a limited time (originally only long enough to recover a reasonable profit), or to purchase it. If the government pays for its development, then it is not patentable. Similarly, if the private sector had already invented such a device, the government could promote it only by a patent or by purchasing it, not by doing something like spending money on marketing it to other buyers.

Now could the power to regulate imply the power to prohibit all modalities of some commodity? No. "The power to regulate is not the power to prohibit." It is only the power to "make regular". Restriction on modality is a kind of prohibition on some modalities, but there must always be some modalities permitted.

So does Congress have the power to prohibit all modalities of some substance that might be used to cause harm? No. It could restrict some modalities of things that are especially dangerous, which could be very restrictive indeed, but subject to safe transport, not restrict the possession or even use of such commodities when not actually being transported or traded from outside a state to a buyer inside it.

Now suppose someone tried to interfere with the inspectors in the conduct of their duties. Could Congress make that a crime? Not by original understanding, on state soil, using any but penal powers delegated by other clauses. It could on the soil of federal enclaves, nonstate territory, where Congress has broader powers, and on foreign soil over which we acquired power through treaty (such as the grounds of U.S. embassies abroad). But on state soil the interference could only be prosecuted criminally as either a state crime or as some form of treason, counterfeiting, piracy or felony on the high seas, or offenses against the law of nations.

The meaning of the "law of nations" clause was frozen in its state as of 1788. To allow future treaties or conventions to expand on that would be to allow them to amend the Constitution. In 1788 the law of nations did not include domestic penal powers, except for things like attacks on diplomats, on shipwrecked passengers and crew, or for piracy conducted from U.S. soil.

So if people tried to interfere with federal inspectors on state soil, those inspectors could shove them aside, or physically defend themselves from assault, or get a court, which on state soil would be a state court, to enjoin the interference, but not to criminally prosecute them (and the Framers neglected to delegate a power to make contumacy a crime). If the interference rose to the level of "making war" then they could be prosecuted for treason, but most of the other penal powers would be unlikely to provide authority for most such situations.

And don't argue that the First Congress made it a crime to rob the mail. The first few congresses were dominated by a lot of people who didn't fully understand or think through the limitations of the new Constitution they had adopted. Many thought Congress had power to authorize prosecution of common law crimes. It didn't.

Needless to say, legal practice has deviated a long way from this understanding, without amendment to the Constitution. Some may be willing to abide that. I am not one of them. Amend it or stop violating it.

With the few exceptions of things like state consent needed to divide states, state governments do not really have "rights". That is an abbreviated way to refer to rights of the people of states. (Which is what the Framers seemed to have meant by the term, using "state legislature" when they wanted to refer to the government of a state.) It is useful to recognize that prior to the 1923 Frothingham case, with its newly restrictive doctrine of "cases and controversies" that denied "standing" to parties without particularized injury (past or expected), the doctrine was that people had standing to privately prosecute a public right, on the doctrine that we all have the justiciable right not to have government anywhere exercise undelegated powers, and that any such exercise is a justiciable injury even if not particularized. The opinion in the Bond case recognizes this doctrine as prudential, not interpretative of the Constitution. It is for the convenience of the Court, to filter and hold down the number of cases it is asked to decide, not something the Constitution requires. (The same could be said of binding stare decisis generally.) It is worth re-reading The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan. L. Rev. 1371, July, 1988.


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