U.S. v. Bond

[JBeukema]

Bond, like Wile E. Coyote, smeared various highly toxic chemicals on surfaces in Haynes's car and around her home, including her mailbox, 24 times. Haynes noticed the contaminants and avoided them, except for one burn on her thumb. She also called local police, who good-heartedly suggested the powder must be cocaine. Then they suggested she keep her car cleaner. Only when she turned to the U.S. Postal Service did someone take her situation seriously. Surveillance cameras posted by USPS caught Bond in the act, and she was arrested.

An unusual case now turns stranger. Federal authorities charged Bond with a violation of 18 U.S.C. § 229, a statute implementing the 1993 Chemical Weapons Convention. She had possessed and used a chemical weapon, the government argued. She pleaded guilty in federal court and received a six-year sentence, which included an enhancement for using "special skill" in the commission of the crime.

Bond reserved the right to appeal the application of this statute to her. But the appeals court held she had no "standing" to argue that her conviction exceeded the power of the federal government. The government hadn't asked for that ruling, but the court went there on its own. At this point her story becomes entangled with issues of federal power that are a lot more important, though radically more boring, than Carol Bond's crazed campaign for vengeance.

Here's the part that lawyers can love: The issue is not whether Congress, or the federal prosecutors, actually overstepped the Tenth Amendment by applying this federal statute to what her lawyer rather flippantly calls, in a brief to the Court, "garden-variety infractions" like using incredibly toxic, highly regulated chemicals around the home of a mother and her two-year-old infant. It's whether Bond can even raise the issue. Ordinarily a criminal defendant has "standing" to argue any grounds that might prove her conviction was unlawful. Why wouldn't she? "Standing" at its core refers to the idea that a person must be injured by a government action. It's hard to imagine an injury more palpable than being hustled off to a federal gated community for six years.

Bond, in fact, didn't argue that her prosecution violated the Tenth Amendment. She just argued that the chemical weapons statute exceeded the power given to the federal government under the Treaty Power, Article II, § 2, clause 2. On its own, however, the Court of Appeals held that Bond's challenge actually arose under the Tenth Amendment, and that only a state had standing to challenge a federal action as violating the Amendment's provision that "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."
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http://www.theatlantic.com/national...xamining-the-mysterious-10th-amendment/71436/
http://www.theatlantic.com/national...nd-reexamining-the-mysterious-10th-amendment/