According to a piece on the WSJ’s opinion page this morning, Bond v. United States may be the most important SCOTUS opinion of the year. David Rivkin and Lee Casey read Bond‘s unanimous reaffirmation of dual sovereignty as an existential threat to the Patient Protection and Affordable Care Act (or “ObamaCare,” depending on your political perspective).
We have a rare treat for you today: one of Bond’s lawyers weighs in with some thoughts about the case.
Eric Reed (pictured) is a partner with Fox Rothschild in Philadelphia, where he works on litigation, white-collar compliance and defense, and securities industry matters. As you’ll read, he worked on Bond at the District- and Circuit-court level. And when it came time to appeal to SCOTUS, the Fox Rothschild team associated the world’s best appellate lawyer, just for good measure:
In Bond v. United States, U.S. (June 14, 2011), the Supreme Court unanimously ruled that an individual criminal defendant has standing to challenge the validity of the charged statute under the Tenth Amendment. I had the privilege of aiding the briefing of the constitutional challenges for the defense in the District Court and before the Third Circuit Court of Appeals, and I observed the stellar work of former Solicitor General Paul Clement and his team before the Supreme Court.
The government accused Ms. Bond of placing chemicals on the door, mailbox, and car of her former friend. The facts leading to the charged conduct are rather sad. Suffice it to say that Ms. Bond became severely distressed after learning that the former friend had become pregnant by Ms. Bond’s husband.
In what we viewed as an overcharge, the federal government charged Ms. Bond with violating the federal chemical weapons statute. The statute was enacted to satisfy the United States’ obligations under the international chemical weapons treaty, which was intended to address the proliferation of weapons of mass destruction and to preclude the large-scale use of chemical weapons. The statute carries a base offense level of 28, which with no adjustments, variances, or departures, equates to a sentence of 78-97 months’ incarceration. Ms. Bond was eventually sentenced to 60 months.
Our arguments for referral of the case to state prosecutors (where Ms. Bond would have faced little, if any, jail time) fell on deaf ears, so we challenged the prosecution on multiple fronts. The Supreme Court appeal resulted from our argument that the chemical weapons statute represents an invalid exercise of congressional power both as enacted and as applied in Ms. Bond’s case. The government conceded that the statute relied exclusively on Congress’ authority to pass legislation “necessary and proper” to implement treaties with foreign nations. We asserted that the utilization of the treaty power to enact legislation that Congress otherwise lacked the ability to pass (such as through interstate commerce authority) usurped the balance of powers between the federal and state governments. This violated both the Tenth Amendment and traditional notions of federalism.
The District Court hardly addressed the argument, and the Third Circuit ruled that only state governments, not individuals, have standing to assert the Tenth Amendment.
The standing issue is what the Supreme Court eventually addressed, unanimously ruling that an individual who is incarcerated has standing to challenge the suspect statute under the Tenth Amendment. After the Third Circuit rejected the appeal, Bob Goldman, a former partner in my firm originally hired by Ms. Bond, connected with Paul Clement and his team at King & Spalding through an intermediary at a Washington, D.C. think tank. Paul and his team prepared a compelling petition for writ of certiorari on a short turnaround. Once the Supreme Court granted certiorari, Paul and his team drafted equally impressive briefs.
Paul was the epitome of poise during the Supreme Court hearing, and masterfully addressed the questioning from the bench. Paul’s recognition of issues, and honest, direct, and thorough responses to the Justices’ inquiries seemed like a clinic in appellate advocacy.
The case will now return to the U.S. Court of Appeals for the Third Circuit, which must now consider the Tenth Amendment challenge it avoided on appeal from the District Court.