We Should Accept the Supreme Court’s Invitation to Check and Balance Washington, D.C.

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Rarely does a unanimous Supreme Court announce a sea change in the balance of power between the states and the federal government. But nearly a year ago, on June 16, 2011, the Court did just that. In Bond v. United States, the Court effectively extended an invitation to strategic lawmaking and litigation under the Tenth Amendment. Constitutionalists should accept the Court’s invitation.

The unanimous opinion penned by Justice Anthony Kennedy could signal the beginning of the end of the federal government’s inexorable expansion into areas the Tenth Amendment reserves exclusively to state and local government, such as local criminal law, health care and firearms regulation. With unusual clarity, the Court ruled our system of dual sovereignty denies “any one government complete jurisdiction over all the concerns of public life.”[1] It underscored that the primary reason for dividing power between the states and the federal government is to protect individual liberty; observing, “Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity . . . Federalism secures the freedom of the individual.”[2]

In view of these principles, the Court ruled that individual citizens can sue the federal government when it violates the Tenth Amendment. But the Court went even further than that—it declared that the states themselves may advance the goals of federalism through “positive law.” Bond expressly declared that our system of federalism empowers “[s]tates to respond, through the enactment 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.”[3] And all of this took place within the context of a case that challenged a federal law stemming from an international treaty on chemical weapons—a context in which federal power would otherwise seem to be at its zenith under modern case law.

The implications of Bond for the balance of power between the states and federal government are potentially vast. Bond does not merely reiterate what the Court wrote a decade ago in Alden v. Maine, i.e., that “[t]he States ‘form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.’”[4] By authorizing citizen lawsuits under the Tenth Amendment for the first time, the Court has finally embraced what Alexander Hamilton wrote more than two hundred years ago in Federalist No. 28—that our Constitution divides power between the states and the federal government so that the people “can make use of the other as the instrument of redress” if “their rights are invaded by either.”

Bond thereby establishes that the Court’s 1990s-era prohibition on the federal government “commandeering” the states is not a standalone constitutional axiom. It is just one logical extension of the first principle that the Constitution is designed to prevent the dangerous concentration of power in any one government in order to “reduce the risk of tyranny and abuse.”[5] Bond shows that this first principle and the rationale for the Court’s anti-commandeering rulings have legs beyond the specific facts of New York and Printz—and it helps explain why the Court has been careful to emphasize repeatedly that the principle of state sovereignty was not implicated when it deferred to expansive views of implied federal power in Raich and Comstock.[6]

As contended by jurists and scholars before the decision came down,[7] Bond confirms that the Court has effectively reversed its aberrational holding in Garcia v. San Antonio Metropolitan Transit Authority that the defense of state sovereignty should be mounted from within the political process at the federal level—in Congress—not within the court system.[8] Instead, by inviting citizen lawsuits under the Tenth Amendment, the Court has necessarily revived the fully-engaged form of judicial review of Tenth Amendment claims previously exhibited in National League of Cities v. Usery.[9] The principal claim of Garcia—that judicial enforcement of dual sovereignty is unworkable—is now fully repudiated by the Court’s own jurisprudential record.

It is time to kick the principles of Bond into higher gear. Already, fourteen states have enacted or adopted the “Health Care Freedom Act” and another seven states have passed the “Firearms Freedom Act.” The Health Care Freedom Act protects individual choice in health plans and insurance against the federal government’s effort to force citizens to buy federally-approved medical insurance beginning in 2014. The Firearms Freedom Act shields in-state firearms manufacturing, possession and sales from being regulated as “interstate commerce” by the federal government’s department of Alcohol, Tobacco and Firearms. Both measures are specifically aimed at resisting federal government intrusion into areas formerly reserved to state and local government.

Before Bond came down, many scoffed at the idea that states would want to enact such laws, much less that their citizens could actually enforce them under the Tenth Amendment. Now, defenders of health care and firearms freedom acts can point to Bond as authority for liberating states and their citizens from overreaching federal dictates. And they should get the last laugh. Bond sends a strong signal to the federal judiciary that they must once again protect freedom-friendly local laws and policies from being overruled by Congress and distant federal bureaucracies.

Bond’s emphasis that federalism serves the purpose of protecting individual freedom and that states are empowered to enact “positive law” to advance the goals of federalism appears to recognize that the Tenth Amendment’s guarantee of state sovereignty was originally meant to work “in tandem” [10] with the Bill of Rights and the Ninth Amendment’s guarantee of reserved rights.[11] Because of Bond, the door is now open for strategic lawmaking and litigation premised on the theory that state law guarantees of individual freedom limit the reach of federal power so long as the state law (1) is within the scope of the traditionally reserved powers of the states, and (2) arises from the same conception of fundamental rights and ordered liberty that is guaranteed by the Bill of Rights.

This Bond-based legal theory is not the same as the long-rejected contention that the state has parens patriae standing to enforce the rights of its citizenry against the federal government—i.e., that the state can stand in the shoes of its citizens and enforce their constitutional rights. Instead, the point is that “the promise of liberty” lies in the “tension between federal and state power.”[12] As James Madison underscored in Federalist No. 51, “[i]n the compound republic of America . . . [t]he different governments will control each other.” Accordingly, when states enact “positive law” to protect constitutional liberty, they are creating the tension states were meant to create as states to ensure a “constitutional equilibrium.”[13] Together with its precedential predecessors, Bond makes it possible for citizens to challenge federal overreach with the argument that the federal government cannot have the power to override state sovereignty when such sovereignty is exercised in service of the very purpose for which our system of dual sovereignty exists—the protection of individual freedom.

As such, the Court’s decision in Bond did not come a moment too soon. As much as we want a strong and vigorous national government, the goal of restraining and moderating its power is more important than ever. Anyone—conservatives and liberals alike—can see that Washington has no idea how to keep its own house. And yet, Washington increasingly insists on telling the American people and the states how they should keep theirs. This concentration of power is not only unconstitutional, it is palpably unwise and dangerous. Citizens need to use every existing constitutional tool to refocus Washington on matters of truly national concern—like getting a handle on the runaway national debt. Otherwise, the federal government will eventually dictate our most important and intimate choices in life. Fortunately, Bond finally gives us the jurisprudence we need to check and balance Washington, D.C.



[1] Id. at 2364.

[2] Bond, 131 S. Ct. at 2365.

[3] Id.

[4] 527 U.S. 706, 714 (1999)(citations omitted).

[5] New York v. U.S., 505 U.S. 144, 181-82, 187-88 (1992).

[6] United States v. Comstock, 130 S. Ct. 1949, 1962-63 (2010); id. at 1968 (Kennedy, J., Alito, J., concurring); Gonzales v. Raich, 541 U.S. 1, 41 (2005) (Scalia, J., concurring).

[7] See, e.g., Massachusetts v. Sebelius, 698 F. Supp. 2d 234, 249 n. 142, 252 n. 154 (D. Mass 2010) (citing United States v. Bongiorno, 106 F.3d 1027, 1033 (1st Cir. 1997); Z.B. v. Ammonoosuc Cmty. Health Servs., 2004 U.S. Dist. LEXIS 13058, at *15 (D. Me. July 13, 2004)); Erwin Chemerinsky, The Hypocrisy of Alden v. Maine: Judicial Review Sovereign Immunity and the Rehnquist Court, 33 Loyola L.A. L. Rev. 1283, 1299 (June 2000).

[8] 469 U.S. 528, 554 (1985).

[9] 426 U.S. 833 (1976).

[10] Quoting Arthur E. Wilmarth, Jr., The Original Purpose of the Bill of Rights:  James Madison and the Founders’ Search for a Workable Balance Between Federal and State Power, 26 Am. Crim. L. Rev. 1261, 1302 (1989).

[11] See generally Calvin R. Massey, The Anti-Federalist Ninth Amendment and its Implications for State Constitutional Law, 1990 Wis. L. Rev. 1229, 1232 (1990).

[12] Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991).

[13] The Federalist No. 31 (Alexander Hamilton) (Gideon ed., 1818).