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Liberty Is at Stake

Jul 18, 2011, Vol. 16, No. 41 • By TERRY EASTLAND
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Last month, a unanimous Supreme Court held that a Pennsylvania woman named Carol Bond may 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 Carol Bond indeed has “standing” to sue.

Supreme Court

Now, a case about standing may seem like small beer. Yet Bond 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.

Carol Bond, finding that a close friend had become pregnant by Bond’s husband, opened a revenge campaign against the woman that involved putting caustic substances on places she would be likely to 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 that the law went beyond what the enumerated powers vested in Congress by the Constitution allow. Necessarily, her position rested on the Tenth 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 may sue to enforce federalism, the Court, with Justice Kennedy writing, said that 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 that 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. After explaining the structural character of federalism and how it “serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another,” Kennedy emphasized that federalism protects individual rights, that these rights are “not simply derivative of the rights of the States,” and that “some of these liberties are of a political character.” 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 Obamacare.

That Justice Kennedy wrote the Court’s opinion in Bond is also worth noting. Through the years Kennedy has joined majorities vindicating federalism claims. But while much of the attention in those cases has been focused upon preserving state sovereignty, Kennedy has taken care to stress federalism’s safeguard for individual liberty. And now, in Bond, his concern is the entire Court’s.

This is not to say that nine justices will vote against the individual mandate. Four obvious ones almost surely will vote for it. The question is where Kennedy will be, since he is more often than not the justice whose vote decides the big 5-to-4 cases. While predictions as to how he might vote must be ventured nervously, Bond provides reason to think that Kennedy will see the Obamacare mandate as a law too far—one that exceeds the enumerated powers of Congress, cuts into the authority of the states, and violates individual liberty.

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