Instant Analysis: Oral Arguments for Bond v. United States

February 22nd, 2011

I will update this page as I make my way through the transcripts in Bond v. United States.

JUSTICE KAGAN: Mr. Clement, in the case before us, are you making any claims other than that Congress was acting outside its enumerated powers in enacting this statute? Are there any peculiarly Tenth Amendment claims that you’re making?
In other words, you admit that Congress is acting within its enumerated powers and yet the action violates the Tenth Amendment. Are you making any claims of that sort, or are all your claims that the statute here goes beyond Congress’s ability to enact it under Article I?

MR. CLEMENT: Well, Justice Kagan, principally our argument here is an enumerated powers argument. My problem, though, is I’m not sure I understand some clearly defined set of Tenth Amendment claims that are uniquely only Tenth Amendment claims and not enumerated power claims.
JUSTICE KAGAN: Well, let’s just use the Printz case and say, even though Congress might have the ability to enact a statute under Article I, there’s an independent Tenth Amendment limitation. Do you have any claims of that kind in this case?

MR. CLEMENT: Well, I don’t think so, but let me just say that my problem is — take the Printz case. The Printz case itself went out of its way to say that it was an enumerated power case. In answering an argument in the dissent, the majority opinion says, this is not separate from enumerated powers. If you –
JUSTICE KAGAN: Well, let’s assume, Mr. Clement, that there is such a thing as a claim in which you’re saying, I can see that this is within Congress’s Article I powers, but there is an independent Tenth Amendment limitation on this. Do you have any claims like that?
MR. CLEMENT: I don’t think so, Justice Kagan, but I’d hate to sort of bet my case that on remand, I’m not going to say something in making an argument that the government or somebody else thinks is too much of a commandeering claim and too much — not enough of an enumerated power claim.

Justice Ginsburg seemed to shy away the 10th Amendment and any commandeering claims, and sought to focus on enumerated powers.

JUSTICE GINSBURG: You are — you are at no risk if the Court were just limited to what both of you agree is involved — Article I, Section 8 — and if there is a difference for commandeering claims, when the case arises, we can deal with it.
MR. CLEMENT: Well, Justice Ginsburg, you could certainly do that, and as long as it is crystal clear that there will be no obstacle to my client making a constitutional attack on section 229 on remand, I suppose that’s fair enough for my client.

Justice Kennedy cut to the heart of Bond’s issue:

JUSTICE KENNEDY: So you want us to say that when there is a specific injury, specific to your client, that your client has the right to make any argument to show that the government has exceeded its powers under the Constitution, because those powers are limited to protect the liberties of the individual?
MR. CLEMENT: Exactly right, Justice Kennedy, and that’s the fundamental worry I have here, is that this Court’s cases have not drawn a distinction between commandeering claims and enumerated powers claims. The two cases the government points to, New York and Printz, both go out of their way to say that they are mirror images or, in fact, enumerated power claims, because a law that commandeers is not necessary and proper.
And I do also think that a part of the problem with the suggestion that somehow Tennessee Electric should be reimagined as a third party standing claim is it fundamentally miscomprehends for whom the structural provisions of the Constitution are there for. Those provisions are there to protect the liberty of citizens.

Justice Alito prodded further about the 10th Amendment as applied to the state, and to individuals:

JUSTICE ALITO: Can’t there be some Tenth Amendment claims that go just to State prerogatives and not to the rights of individuals? Let’s say there’s a Federal statute that purports to regulate where a State locates its capital, or the — the contents of a State flag, something like that. Wouldn’t that go just to State prerogatives and not to individual rights?
MR. CLEMENT: I think it would, Justice Alito. My point is not that there’s some special rule for the Tenth Amendment that plaintiffs will always have standing. My point is that you should just apply the normal rules. And what I don’t think is sustainable is the proposition that in commandeering claims an individual never has standing.
I mean, imagine a Federal statute that purported to save Federal money by commandeering local prosecutors to prosecute Federal crimes. Well, I would hope that a defendant in that kind of case would be able to raise a commandeering argument as a defense. I don’t think it would be any different if Congress tried to commandeer the Comptroller General to start bringing criminal prosecutions.

Justice Kagan tried to corner Clement on whether he was in fact making a commandeering claim:

JUSTICE KAGAN: Mr. Clement, if you are not making a commandeering claim, then we would be going out of our way to decide that question. And so, you know, are you making a commandeering claim?
MR. CLEMENT: I don’t — I don’t self-identify as having made a commandeering claim. But what I would say is — we’re not asking you to do anything special. I just think it’s the government that’s asking you to go out of your way to reconceptualize Tennessee Electric as a different kind of case and preserve it.

And this may be the quote of the day:

There is something sort of odd about the government’s theory that says that I can buy a chemical weapon at

During the arguments of the United States in support of Petitioner, Chief Justice Roberts and Justice Alito inquired further about drawing a line between enumerated powers and the Tenth Amendment.

CHIEF JUSTICE ROBERTS: It’s kind of hard under our precedents to draw that precise line between enumerated powers and the Tenth Amendment, and it seems a bit much to put defendant to the trouble of trying to do that under the theory from TVA that they have no standing to make a particular type of Tenth Amendment claim.
MR. DREEBEN: Mr. Chief Justice, I don’t think that the defendant needs to be put in any trouble in this case because the kind of claim that counsel is making on her behalf does assert her right not to be subject to criminal punishment under a law that he says, counsel says, Congress lacks the authority to enact.
JUSTICE ALITO: Well, what if they argue –
what if she argues on remand, if there is a remand, that, assuming for the sake of argument Congress can enact any law that is necessary and proper to implement a treaty? The Tenth Amendment prohibits certain laws that intrude too heavily on State law enforcement prerogatives, State police power. If she makes that argument, which category does that fall into?
MR. DREEBEN: It falls into the enumerated powers category, Justice Alito, just as last term in United States v. Comstock one of the elements that this Court looked at when it decided whether the law authorizing civil commitment in that case was within Congress’s enumerated authority plus the Necessary and Proper Clause, the Court looked at the extent to which the law accommodated State interests or, alternatively, invaded them in an unlawful manner, which is what Mr. Comstock had alleged in that case.

Justice Kennedy provides a brief soliloquy on federalism and the like:

JUSTICE KENNEDY: But you’re — you want us to say that, even if the defendant in some case might show that a constitutional violation is causing that defendant specific injury, the defendant may not be able to raise the claim of its, what you call sovereignty claim? In Thornton v. Arkansas, the term limits case, we allowed a citizen of a State to bring a challenge to a statute that the State had enacted inconsistent with its Federal powers. Now, that’s the flip side. That was a State statute, not a Federal statute, but it seems to me that is inconsistent with the position you’re taking. And it seems to me also consistent -inconsistent with the rule that separation of powers claims can be presented by defendants, in Chadha v. INS, Clinton v. New York, a line-item veto case.
The whole point of separation of powers, the whole point of federalism, is that it inheres to the individual and his or her right to liberty; and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can’t it be raised? I just don’t understand your point.

There was a brief discussion of killing goldfish and medicinal marijuana from Justice Alito (not what you think):

JUSTICE ALITO: Well, a chemical weapon is a weapon that includes toxic chemicals. And a toxic chemical is a chemical that can cause death to animals. And pouring vinegar in a goldfish bowl, I believe, will cause death to the goldfish, so that’s — that’s a chemical weapon.
MR. DREEBEN: I’m willing to make the assumption with you and accept that it is a broad-reaching statute, but it was adopted as a broad-reaching statute because this is an area, like the medical marijuana instance in Raich, where effective control of the interstate market requires control of an intrastate market. The statute exempts peaceful uses for agricultural and pharmaceutical purposes of these chemicals, it has other exemptions as well. It was intended to be a comprehensive ban that implemented the United States treaty obligations to eliminate the use of chemical weapons both in military instances and in terrorism, and –
JUSTICE ALITO: The difference is that Raich involved one commodity, right? Marijuana. This involves potentially thousands and thousands of chemicals. And you would have — you would make the same argument with respect to every one of those chemicals if you take together all of the people who are — who would use vinegar to kill goldfish or all the people who might use antifreeze to kill dogs, you put all of that together, that has a substantial effect on the interstate, the interstate market for antifreeze or for vinegar? That would be the argument?