Senior Fellow, Charles Koch Institute
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Vikrant P. Reddy | November 2, 2010
Americans concerned about the relentless federalization of state and local criminal laws are on the brink of a rare victory in Bond v. United States, a U.S. Supreme Court case that reads like a pulp novel. The defendant in the case is a microbiologist, Carole Bond, who became unmoored when she learned that her husband had impregnated her best friend. She resolved to poison the friend by using toxic chemicals she obtained from amazon.com and from her workplace. She spread the chemicals on her friend’s door knob, car handle, and mailbox. The friend survived, and Bond was discovered and convicted.
This ought to sound like a straightforward – if salacious – case of assault. As the cliché counsels, “there’s no need to make a federal case out of it.”
That is not how the U.S. Attorney saw it. Federal prosecutors seized upon the fact that the chemicals Bond used were regulated under an international weapons treaty and indicted Bond as a federal criminal. Under the federal sentencing enhancement, Bond received six years in jail, when she would otherwise have received two years.
Bond appealed, arguing that an intra-state assault did not implicate an arms control treaty, and under the Tenth Amendment, it was a matter for local – not federal – law enforcement. A federal court of appeals held, however, that Bond was precluded from making this argument because only states, not individuals, have standing to raise Tenth Amendment issues.
Bond then appealed this ruling to the Supreme Court, citing a panoply of Supreme Court case law, academic articles, and even The Federalist Papers to argue that overfederalization is significant political concern, and individuals must have standing to raise Tenth Amendment concerns about it. Otherwise, her brief asks, who would do it? “[A] state has few incentives to object to federal laws that serve to relieve a state from its responsibilities. [A]s state budgets are constrained, state governments may well prefer to allow the federal government to take responsibility for prosecuting and punishing local crimes.”
Astonishingly, the federal government agreed with her. The Solicitor General’s reply brief acknowledged that individuals do indeed have standing to raise Tenth Amendment issues. Because the parties are in agreement, the Supreme Court appears to have granted certiorari merely so that it can issue an opinion that clears all confusion and explicitly affirms that individuals have standing to raise Tenth Amendment suits.
It is important to understand what this case does and does not accomplish. The case does not mean that Bond’s prosecution under a chemical weapons statute will be found illegal. It certainly does not mean that Bond, who committed a heinous crime, will not be punished. It does, however, recognize the right of an individual merely to raise important questions about whether certain crimes ought to be federalized. In the larger fight to scale back overfederalization, this is a significant triumph, one with the potential to be reap benefits for years to come.