Legal News

Tuesday at the High Court, the 10th Amendment?s Star Turn Continues

By Ashby Jones

The 17th Amendment to the Constitution had a brief recent moment in the spotlight (here, here).

But for the most part, it’s still the 10th Amendment’s world. Parties concerned about overreaching federal power have taken to invoking the amendment almost as a matter of course.

The U.S. Supreme Court on Tuesday will hear arguments in an interesting and rather macabre case that could potentially limit the degree to which federal prosecutors pursue behavior that the states typically deal with. Click here for the Washington Post story on the case.

The backstory: the U.S. attorney’s office in Philadelphia went after a Pennsylvania woman accused of poisoning her husband’s lover, filing charges under the auspices of a treaty called the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.

The woman, Carol Bond, claimed the federal government had no right to indict her, and sued the federal government, claiming prosecutors violated the 10th Amendment.

And that’s precisely the issue at stake here, whether someone can sue the federal government on grounds that it has intruded into an area typically reserved for the states.

The Third Circuit said individuals don’t have such a right on their own. The Third Circuit ruled that Bond lacked standing to challenge her conviction; that only states can bring challenges under the 10th Amendment.

The federal government, which is the defendant in the case, agreed with the appeals court’s decision at first, but it now argues that Bond should have standing to sue.

Stephen R. McAllister, a University of Kansas law professor who also serves as the state’s solicitor general, was assigned by the justices to defend the appeals court’s decision. He’s arguing that the 10th Amendment speaks to the rights of states, not individuals.

“Although [Bond] may not be a professional terrorist and did not, for example, send toxic chemicals through the mail,” McAllister said in his court brief that her legal challenge could make it difficult to prosecute others with terrorist intentions.

The conservative groups that have filed briefs on Bond’s behalf urge the court to decide more than just the question of whether Bond has standing. Rivkin’s brief said the states “welcome the efforts of private citizens” to challenge federal actions.

“It would be incongruous if the states alone could challenge Federal actions upsetting this critical balance, because its purpose was and is to guard and vindicate the rights of individual citizens.”

Full post as published by Law Blog - WSJ.com on February 22, 2011 (boomark / email).