Analysis
When Justice Anthony M. Kennedy writes a soaring opinion about the virtues of American federalism, it often can be a very big deal, constitutionally.  He has done more, personally, than any Justice with whom he has sat to buttress the sovereignty — and the dignity — of state governments. Indeed, he was widely thought of as the philosophical leader of the Court’s modern “federalism revolution,” which lately had lost some of its momentum.
But, on Thursday, Kennedy rekindled that spirit — but not on behalf of state governments; rather, the beneficiary of federalism, this time, is a woman charged with crime for trying to hurt her husband’s lover.  Whether the benefit stops with that woman, Carol Anne Bond of Landsdale, Pa., however, could ultimately show that the new decision was a very big deal, or, maybe, not at all. The opinion creates what might be a very wide opening for citizens to go to court to challenge the power of Congress to pass laws that intrude on states’ rights.  But it will take time to tell how many citizens with grievances of that sort can get over constitutional barriers to citizen lawsuits.
The new ruling in Bond v. U.S. (docket 09-1227) stands, in a technical sense, for one simple proposition: a lawsuit claiming that Congress has stepped on the states’ sovereign authority does not need to be filed or joined by a state government.  A number of courts had been assuming, and ruling, that state involvement in such a case was absolutely necessary, when the Tenth Amendment was being used to challenge a federal law passed by Congress. That interpretation was based on a passing comment the Supreme Court had made (seemingly meaning just that) in the 1939 case of Tennessee Electric Power Co. v. Tennessee Valley Authority.
But that reading of the case, the Court ruled in Bond on Thursday, is wrong.  That it took 72 years for the Court to say so perhaps shows how deeply embedded that reading was, although there was disagreement among lower courts. The U.S. government, too, had long taken the position that the TVA decision did mean that only states could bring lawsuits seeking to enforce the limits that the Tenth Amendment imposes on Congress’s legislative powers.  Only when Carol Bond’s case got to the Supreme Court did the federal government change its mind, at least partially.
In Thursday’s decision, the Court began with the TVA ruling.  Another starting point, perhaps, is the Tenth Amendment itself. Part of the grand compromise that made it possible to get skeptical states’ rights advocates to go along with ratification of the Constitution when it was new, the Amendment fulfilled an implied promise at Philadelphia that Congress’s power over matters traditionally handled by the states would be restricted. The Amendment reads in full: “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.”
It stands to reason, for some courts, scholars, and states’ rights devotees, that enforcement of that restriction should be done by the states themselves; it is their core interest in their own powers that would be compromised if Congress drew those powers to itself.  And that sentiment, for all of the technical analysis that Justice Kennedy provided in Bond, was probably what animated the Court in 1939 to say what it did in the TVA opinion about state involvement in Tenth Amendment lawsuits.
After setting that matter straight, in a lengthy discussion that has none of the rhetoric that Kennedy often has put in a federalism opinion, Thursday’s opinion for the unanimous Court changed markedly on page 8.  There, the opinion confronted an argument made before the Court by a Kansas lawyer who was named, when the federal government backed off the point, to support the view that Carol Bond, an individual citizen, could not challenge a federal law on Tenth Amendment grounds. (The law implements a global treaty seeking to prevent the spread of chemical weapons; the charge against Bond was that she was using chemical weapons against her husband’s paramour.)
Topeka attorney and former law dean Stephen McAllister had contended before the Court that, if one used the Tenth Amendment to challenge a federal law, that would necessarily rest upon the states’ interests, and only those interests. “That, however, is not so,” Kennedy responded. “Bond seeks to vindicate her own constitutional interests. The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to a state.”
And then the federalism rhapsody began.  For most of the remainder of the opinion, Kennedy praised the shield for individual rights that exists in the divided government premise of federalism.  Quoting one of the decisions that was a highlight of the “federalism revolution” (the 1992 decision in New York v. U.S.), Kennedy commented: “Federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
Further, Kennedy said, in his own words, federalism “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions….By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the states.”
The promise of the opinion may, perhaps, be far-reaching.  And yet, this is an opinion from a Court that, a little more than two months ago (in an opinion authored by Kennedy) virtually wiped out the right of taxpayers to file lawsuits when government funds allegedly were being used to support religious organizations (Arizona Christian School Tuition Organization v. Winn, 09-987). Moreover, this is a Court that, more often than not, has moved to restrict the concept of “standing to sue” under the Constitution’s Article III.
And that is why the opinion may not carry future litigants very far up the courthouse steps, Tenth Amendment lawsuit in their briefcases. In what amounted to only a passing comment in Thursday’s praise of federalism and the right to sue to buttress that concept, Kennedy reminded readers that Article III barriers to “standing to sue” remain intact. “If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or imminent harm that is concrete and particular, fairly traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim. These requirements must be satisfied before an individual may assert a constitutional claim; and, in some instances, the result may be that a state is the only entity capable of demonstrating the requisite injury.”
Carol Bond, Kennedy went on to say, could bring her Tenth Amendment claim (which the Court did not finally resolve on Thursday) because she is a party to a case that was otherwise properly in court — a criminal prosecution aimed at her. So, the Court concluded, she could object to the charge with the argument that her injury “results from disregard of the federal structure of our government.”
It is now up to the Third Circuit Court, sitting in the Constitution’s birthplace, Philadelphia, to decide whether Congress did go too far in passing a criminal law that could be used by prosecutors against an individual citizen caught up in a domestic fracas.
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