Federalism

A Case That Belonged on Maury, Not in Federal Court

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Last fall I noted a Supreme Court case involving a Pennsylvania microbiologist, Carol Bond, who was convicted of violating the Chemical Weapons Convention of 1993 by trying (unsuccessfully) to poison an ex-friend who had been impregnated by Bond's husband—a particularly egregious example of federalizing a crime that should be handled under state law. Bond was sentenced to six years in federal prison, three times the maximum penalty she could have received if she had been convicted of aggravated assault under state law. Yesterday the Court heard oral arguments on the question of whether Bond can challenge her prosecution under the 10th Amendment, which says "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." In 2009 the U.S. Court of Appeals for the 3rd Circuit said Bond does not have standing on her own to mount such a challenge.

The Washington Post reports that "the justices seemed inclined to say that a criminal defendant such as Bond should at least get the chance to argue the statute is unconstitutional." The Obama administration, which initially agreed with the 3rd Circuit that Bond's suit should be dismissed, now says she should have a chance to make her case, although it argues that prosecuting her under a statute aimed at terrorists and rogue states was appropriate. Because of the administration's switcheroo, the Court appointed Lawrence, Kansas, attorney Stephen R. McAllister to defend the 3rd Circuit's decision (PDF).

The Post portrays the 10th Amendment issue (more or less accurately) as a pet cause of conservatives and libertarians. But like the related question of Congress' power under the Commerce Clause, it should be of interest to progressives as well. An overreaching federal government does not limit itself to areas where progressives welcome its meddling, as the controversies over "partial birth" abortion, assisted suicide, gay marriage, and medical marijuana illustrate. Furthermore, if you believe the Justice Department should play a vigorous role in defending constitutional rights (against violations by corrupt judges, for example), you should worry about diverting its resources to run-of-the-mill crimes like assaults arising from love triangles.

The transcript of the oral arguments in Bond v. U.S. is here (PDF). William Anderson and Candice Jackson explored the problems posed by the federalization of crime in a 2004 Reason article.