Power Play

Justices Hear Tenth Amendment Case Cited by Health Care Law Opponents



The Supreme Court heard arguments Tuesday in an unusual case examining the scope of the Tenth Amendment and the ability of a Pennsylvania woman to challenge her conviction for poisoning her husband's lover.

Advocates of a weaker federal government often point to the language of the Tenth Amendment as justification for stronger states rights. It's the last of the Bill of Rights. 

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," it reads.

The amendment is often cited by small government proponents, include Tea Party activists, who think lawmakers in Washington have exceeded their authority in passing certain legislation—especially criminal laws.

But it also can be found in the so far unsuccessful challenge from Liberty University against President Obama's health care law that is based, in part, on an alleged violation of the Tenth Amendment.

It's unlikely that the court's ruling in Tuesday’s case will be so sweeping that it would impact the health care litigation, which is all but certain to be decided by the justices. But it does appear as if the high court will issue a ruling that at least in criminal cases individuals can make Tenth Amendment claims.

Five years ago, Carol Bond didn't take too kind to her husband impregnating her best friend. She pled guilty to using chemicals stolen from her work to poison the other woman. But she objected to the decision of federal prosecutors to go after her using a law mandated under a 1993 international treaty banning the use of chemical weapons. Bond says the Tenth Amendment prohibits the feds from using the chemical weapon law to prosecute her.

At issue is whether she can go to court and challenge her conviction under the Tenth Amendment argument.

Lower courts, citing a 1939 high court decision involving the Tennessee Valley Authority, ruled she lacked the standing necessary to mount the claim. Her lawyer, former Bush administration Solicitor General Paul Clement, said the TVA case was no longer good law and that Bond absolutely has the right to challenge her conviction because of the constitutional protection.

"The standing of [Bond] to challenge the constitutionality of the federal statute under which her liberty is being deprived should not be open to serious question," Clement said at the start of his case. "She clearly satisfies this court's modern tripartite test for standing. Indeed, it is hard to imagine an injury more particularized or concrete than six years in federal prison, and the liberty interest she seeks to vindicate is her own, not some third party's."

That argument seemed to hold sway with Justice Anthony 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?"

"Exactly right, Justice Kennedy," Clement replied.

In an interesting twist, the federal government, which prosecuted Bond, has switched positions and now agrees that she should be able to press her claims. But Deputy Solicitor General Michael Dreeben doesn't think Bond will have much success in actually convincing a judge that the government did exceed its authority.

"In our view, [Bond] is entitled to make that [Tenth Amendment] argument. That argument should also fail on the merits," he said.

The arguments were more subdued than many in the high court, perhaps reflective of the sense that the ultimate outcome was all but certain. A decision is expected by the end of June.