Posts Tagged Federalism
In a decision released Friday, Bond v. United States, the US Supreme Court ruled that individuals charged in criminal cases have standing to challenge the constitutionality of federal laws on 10th Amendment grounds. The Court held that federalism, as described in the 10th Amendment, protects individual rights, not merely the states’ sovereignty.
Federalism secures the freedom of the individual. It allows States to respond, through theenactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.
Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. See ibid. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.
The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York, supra, at 181. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.
Just as it is appropriate for an individual, in a proper case, to invoke separation-of-powers or checks-and-balances constraints, so too may a litigant, in a proper case, challenge a law as enacted in contravention of constitutional principles of federalism. That claim need not depend on the vicarious assertion of a State’s constitutional interests, even if a State’s constitutional interests are also implicated.
The government had also argued that the defendant could not invoke the state sovereignty argument, since she wasn’t a state. The Court ruled against the government on those grounds, as well. Meaning that an individual, with a legitimate case, can argue that a federal law is unconstitutional based on either state sovereignty grounds, or on enumerated powers grounds.
The Court was careful not to change the conditions under which someone had the standing to assert unconstitutionality. They have to be a party to a suit, or have suffered some specific harm. That remains unchanged:
An individual who challenges federal action on these grounds is, of course, subject to the Article III requirements, as well as prudential rules, applicable to all litigants and claims. Individuals have “no standing to complain simply that their Government is violating the law.” Allen v. Wright, 468 U. S. 737, 755 (1984). It is not enough that a litigant “suffers in some indefinite way in common with people generally.” Frothingham v. Mellon, 262 U. S. 447, 488 (1923) (decided with Massachusetts v. Mellon). If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or imminent harm that is concrete and particular, fairly traceableto the conduct complained of, and likely to be redressed bya favorable decision, the Federal Judiciary cannot hear the claim. Lujan, 504 U. S., at 560–561. These requirements must be satisfied before an individual may assert a constitutional claim; and in some instances, the result may bethat a State is the only entity capable of demonstrating the requisite injury.
The Goldwater Institute has a number of cases and briefs pending (they single out arguments against the NLRB and Obamacare) that depend on 10th Amendment objections. While standing remains, as ever, an issue in litigation, at least the Court has given a clear directive that 10th Amendment right devolve to individuals on state sovereignty grounds, and not merely states.
The European Union is going through its federal-state crisis, forced into the debate on federal vs. national power by circumstance rather than by choice, just as we were 224 years ago. There are significant differences, to be sure, and we’ll get to those. But what it happening now is a result of similar tensions to our own, and it’ll be very interesting to see how the Europeans resolve them.
Since the Greeks threatened to do to contemporary Germans what they did to WWII Italians – swallow up large swatches of resources in the order to stay pacified – the question of just how far the rest of Europe in general, and Germany in particular, would allow themselves to be dragooned into backstopping the finances of the EU’s weak sows, Portugal, Italy, Ireland, Greece, and Spain.
Now, the Arab Spring is forcing Europe, through Denmark, to confront the issue of border control in a way that it has not in the past.
Continuing to work my way through the Debates on the Constitution, at a languid pace, I came to this letter from James Madison to Thomas Jefferson. Jefferson was, at the time, Minister to France, so had no direct role in drafting the Constitution. Madison’s main concern in the letter is federalism, and the division of powers between the states and the national government. The letter serves as a reminder that the work of a committee, even a Constitutional Convention, is a work of compromise. In particular, these paragraphs:
It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States. A voluntary of the federal law by all members, could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent & the guilty, the necessity of a military force both obnoxious & dangerous, and in general, a scene resembling much more civil war, than the administration of a regular Government.
Hence was embraced the alternative of a Government which instead of operating, on the States, should operate without their intervention on the individuals composing them: and hence the change in principle and proportion of representation. (Emphasis added.)
This is critical, because it means that while the states would have a say in the federal government, in the form of the Senate and the Electoral College, the federal government would have no say in the selection of state officers, nor a direct veto on state legislation. (Both of these options were considered.) It also, I think, affects our reading of the Tenth Amendment, adding weight to the notion that individuals have standing to challenge federal attempts to overstep their bounds.
Right now, the Supreme Court is considering such a case:
Surveillance cameras captured Ms. Bond stealing an envelope from Ms. Haynes’s mailbox and stuffing potassium dichromate in her car’s muffler. That led to federal charges of stealing mail—and violating criminal statutes implementing the international Chemical Weapons Convention, which the U.S. ratified in 1997. Ms. Bond, who in 2007 was sentenced to six years imprisonment, appealed on grounds that Congress lacked authority to punish her for the chemical assaults.
In Philadelphia, the Third U.S. Circuit Court of Appeals denied Ms. Bond the right to raise that claim, ruling that only state officials had legal standing to assert a 10th Amendment violation of their authority. When Ms. Bond appealed to the Supreme Court, the Justice Department abandoned the Third Circuit’s decision, conceding individual defendants were entitled to argue that they were charged under laws exceeding congressional power.
For the record, keep your eye on another moving part here: whether treaties are permitted to override Constitutional protections. This could mean that even if the US were to sign a small arms treaty of some kind, provisions that violate our understanding of the 2nd Amendment might not apply here in the US. This isn’t to imply that signing or ratifying such a treaty would be a good idea, or that the Court would agree with me, just that the Court’s decision on this case might signal its current thought on the matter.