Federalism – Page 9 – Marquette University Law School Faculty Blog

Defendant Can Raise Tenth-Amendment Challenge to Her Conviction, SCOTUS Rules

Post author:Michael M. O'Hear
Post published:June 16, 2011
Post category:Constitutional Interpretation Criminal Law & Process Federal Criminal Law & Process Federalism U.S. Supreme Court

Earlier today, in Bond v. United States (No. 09-1227), the Supreme Court ruled that the defendant should have been permitted to raise a Tenth-Amendment challenge to the chemical-weapons statute that she was convicted of violating. In response to her indictment for violating 18 U.S.C. § 229, Bond had argued

that the conduct with which she is charged is “local in nature” and “should be left to local authorities to prosecute” and that congressional regulation of that conduct “signals a massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” Record in No. 2:07-cr-00528-JG-1 (ED Pa.), Doc. 27, pp. 6, 19. The public policy of the Commonwealth of Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which petitioner is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about if the matter were left for the Commonwealth of Pennsylvania to decide. Indeed, petitioner argues that under Pennsylvania law the expected maximum term of imprisonment she could have received for the same conduct was barely more than a third of her federal sentence.

The Third Circuit, however, ruled that Bond lacked standing to raise her constitutional objections.

In reversing this decision, the Court did not address the merits of the objections. As a result, it’s hard to say whether there is any sympathy on the Court for the basic claim that the Tenth Amendment may be violated when a federal law criminalizes conduct that is “local in nature.” Still, it is interesting to put Bond alongside last month’s decision in Fowler, in which the Court cited similar federalism concerns in rejecting an expansive interpretation of a different federal criminal statute. Perhaps the Court is entering a new phase of heightened concern over the federalization of criminal law.

Cross posted at Life Sentences Blog.

Best of the Blogs: One Lump or Two?

Post author:Edward A. Fallone
Post published:October 25, 2010
Post category:Business Regulation Constitutional Interpretation Federalism Health Care Political Processes & Rhetoric

November 2 is fast approaching, and the nation is awaiting the election results to see whether the Tea Party Movement will be revealed to be a force in American politics or an over-hyped media sensation. This week’s “Best of the Blogs” feature provides everything a political junkie needs to learn more about the Tea Party Movement.

The obvious starting point might be Butch Cassidy’s (or Paul Newman’s) famous question, “Who are those guys?” Amy Gardner at the Washington Post tries to answer that question here (hat tip to Steven Easley). Despite her best efforts, a definitive picture of the Movement remains elusive:

[A] new Washington Post canvass of hundreds of local tea party groups reveals a different sort of organization, one that is not so much a movement as a disparate band of vaguely connected gatherings that do surprisingly little to engage in the political process.

Tea Party Economics

Post author:Edward A. Fallone
Post published:October 4, 2010
Post category:Business Regulation Federalism Political Processes & Rhetoric

Readers of this Blog know that I have a longstanding interest in the debate over the scope of the federal government’s power to regulate the economy under the Constitution. I am also inclined to take the Tea Party Movement seriously as a political phenomenon rather than writing them off as a group of buffoons or extremists, unworthy of attention. For that reason, I read with some interest Kate Zernike’s article in the New York Times on October 2 that discussed the writers whose books are most often said comprise the intellectual foundation of the Tea Party movement.

Taking pride of place among the “long-ago texts” highlighted in the article is Friedrich Hayek’s 1944 book The Road to Serfdom. Hayek is often cited by the movement’s followers for his argument that a government that intervenes in the economy will inevitably intervene in every aspect of its citizen’s lives. If one accepts this premise, it is easy to understand why members of the Tea Party Movement reacted with hostility to the Troubled Asset Recovery Program (TARP), health care reform, and the bailout of the domestic auto industry. For Tea Party followers, these separate policies – when viewed together — comprise a centrally planned economy reminiscent of the Soviet Union’s infamous Five Year Plans.