Dahlia Lithwick and Adam Liptak have good articles about yesterday's oral argument in Bond v. U.S., a case involving Carole Anne Bond, a woman who poisoned her husband's lover. The legal issue at the heart of the case is whether she was improperly prosecuted in federal court. Bond's attorneys argue that, 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," she should have been tried in Pennsylvania state court under a state law. So, it boils down to a question of states' rights. The main question justices want addressed in the case is whether Bond has "standing" to challenge her conviction or whether only the state of Pennsylvania itself does.
Like most people, I don't much care about "federalism"; unlike many people, I'm candid about it. But even to me, this is an exceptionally dubious exercise of federal authority, stretching the meaning of a federal statute that was designed to ratify an international treaty on chemical weapons. In this case, it was used to reach criminal activity that's within the purview of the states without any relationship to a larger regulatory objective -- one that would require federal intervention. While the law itself isn't problematic -- actual trafficking in chemical weapons could require federal intervention -- it's hard to justify its application in this particular case, which involves a single instance of poisoning. Certainly, it's a much better example of federal "overreach" than the Affordable Care Act.
The Court may not reach the substantive issue, however, because the appeals ruled that Bond did not have the standing to challenge her conviction; only states can raise 10th Amendment claims. I normally agree with Lithwick, but not when she said, in this case, that "standing doctrine is where all interestingness goes to die." I think the standing question is of interest most notably because the lower court holding strikes me as nutty. The point of standing doctrine is to ensure that the courts only resolve concrete cases, and as Bond's attorney, Paul D. Clement, says, "It is hard to imagine an injury more particularized or concrete than six years in federal prison." The argument that Bond lacks standing to challenge the constitutionality of a law that could result in her being sent to jail is bizarre, and it looks as if the Court will sensibly agree and either distinguish or overrule the precedent.
