Recently I noted the BOND v. UNITED STATES decision by the Supreme Court as a potential path to judicial testing of the legitimacy of the new federal laws and powers of the past 40 years.  My two articles (Good News, Bad News) and (Neither a Lawyer Nor Scientist Be) of the past three days mentioned this potential possibility for confronting federal overreach. 

While answering comments from readers, and while obviously in a hurry as I strive to meet other obligations, I received the following comment (#1.) from a long-time reader who I assume is a lawyer based on the quality of his comment.  My hasty response (#2.) made yesterday was nowhere near adequate and as I thought of it later I knew it.  This morning a more responsible response (#3.) was made as I drank my morning coffee.  They are all provided here for your possible benefit.

Jim

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#1. From a Reader:

FYI that is not a quote from the case of U.S. v. Bond, which unfortunately goes nowhere near so far:

There is no basis to support the Government's proposed distinction between different federalism arguments for purposes of prudential standing rules. The principles of limited national powers and state sovereignty are intertwined. While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York, 505 U.S., at 155-159, 112 S. Ct. 2408, 120 L. Ed. 2d 120, and action that exceeds the National Government's  [*25] enumerated powers undermines the sovereign interests of States. See United States v. Lopez, 514 U.S. 549, 564, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases. 

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, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984). It is not enough that a litigant "suffers in some indefinite way in common with people generally." Frothinghamv. 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 traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim. Lujan, 504 U.S., at 560-561, 112 S. Ct. 2130, 119 L. Ed. 2d 351. These requirements must be satisfied before an individual may assert a constitutional claim; and in some instances, the result may be that a State is the only entity  [*26] capable of demonstrating the requisite injury. 

In this case, however, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of our Government. Whether the Tenth Amendment is regarded as simply a "'truism,'" New York, supra, at 156, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (quoting United States v. Darby, 312 U.S. 100, 124, 61 S. Ct. 451, 85 L. Ed. 609 (1941)), or whether it has independent force of its own, the result here is the same. 

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#2. My too hasty response:

It is a quote from the Wall Street Journal’ editorial piece on the Bond case.  I had a much more complete (3X) quote from that piece in The article yesterday.

Here is the article (the first ½ being on Bond) I wrote from the piece in the WSJ:

GOOD NEWS, BAD NEWS 

First, the Good News from The Wall Street Journal:

“The Supreme Court’s most important ruling this year may have been its unanimous decision in BOND v. UNITED STATES, which held that individual citizens can challenge federal statutes when they encroach on authority the Constitution reserves to the states.”

“Ms. Bond was subjected to federal prosecution under a statute designed to implement the Chemical Weapons Convention.  In defense, she argued that the law exceeded Congress’s power because its violation required no link to interstate commerce or any other specific federal interest.  The government argued that because (Pennsylvania) was not party to the suit, Ms. Bond could not defend herself by attacking that law on federalism grounds.”

“The Supreme Court disagreed.  With an unusual unanimity, the court held squarely that individual citizens have every right to challenge federal laws on the ground that they exceed the limited and enumerated powers vested in Congress by the Constitution.  The court stated without equivocation that ‘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.’” 

Please read that again and think:

Endangered Species Act.

Wilderness Act

Endangered Species UN “Convention”

UN Small Arms Treaty

Public Land Closure and Non-Management/Use Laws and Regulations

USFS/BLM/USFWS/NPS Purchases/Easements

Government “Partnerships” with TNC/DOW/NWF/Audubon/etc., etc.

Wolves/Buffalo/Sage Grouse/Salmon/”Invasive” Sp./”Native” Sp./”Native” Ecosystems

Federal Gun Laws on federal lands. 

I apologize for its not being from the Record.  My purpose was and remains to take the WSJ (usually reliable in my experience) account and suggest some possible applications.  I am no lawyer and this is not legal advice but if there is some applicability for some circumstance that is helpful then I will try to put it out there.

#3. My more measured response:

I have reread that WSJ article – An Obamacare Legal Precedent? – on page A13 of the Tuesday 28 June 2011 WSJ. 

My articles quote only 2 of the WSJ paragraphs that I felt explained it (I try very hard not to get too far into the weeds so as to lose reader interest). 

That said here are two sentences I did not quote that are probably the most powerful (and applicable to what my topics cover) points that struck me. 

“Ms. Bond was subjected to federal prosecution under a statute designed to implement the Chemical Weapons Convention.  In defense, she argued that the law exceeded Congress’s power because its violation required no link to interstate commerce or any other specific federal interest.” 

Is it not reasonable to apply the same check to the ESA enforcing the UN Convention on International Trade in End. Sp. i.e. CITES?  It seems that the “Chemical Weapons Convention” as a tool to federally prosecute some “wronged woman” is no less specious than taking without compensation or forcing wolves into rural precincts as a federal power based on CITES or other non-Constitutional federal claims.  

Would not new federal powers to eradicate nationally certain (Invasive) plants and animals or to establish nationally certain (Native) plants and animals based on Congressional whims or “international” “whatevers” likewise be an un-Constitutional expansion of federal power and infringement of the powers “reserved to the States” in the 10^th Amendment?  I think that it is not too far a stretch to posit that other federal expansions (Wilderness Bill; Animal Welfare Act; Federal lands closures, gun laws, purchases, easements and a bunch of etceteras) are worth consideration under this examination for a required “link to interstate commerce or any other specific federal interest” to determine the legitimacy of federal laws and regulations. 

I have never pretended to be a lawyer but I have a strong record of applying laws and regulations in big, complex investigations while I worked in New York as the only USFWS Special Agent in New York City.  I would refer readers to the Vesely-Forte international cat fur smuggling Case and the Cartier Jeweler Hawksbill Turtle Jewelry Case.  I discovered those two, investigated them and worked with US Attorneys in the Eastern and Southern Districts of New York to successfully prosecute them in the early 1970’s.   

In those cases, my job was to present the facts to the US Attorney and then give him as much about the relevant laws and regulations as well as their position vis a viz foreign laws and former US prosecutions that might apply.  I certainly did not do all of that but I did put it all in perspective legally and biologically.  The point here is that this BOND Case and the fact that you can’t prosecute some mad wife for using a chemical to burn the woman pregnant by her husband (hello, are there any states or state laws left out there??) under a “Convention” seems very relevant and it is up to you and every other reader, just as it was up to the US Attorney to take the position that it is or is not relevant and proceed accordingly.

The way we are getting pushed back everywhere of late makes me an outspoken advocate of seizing whatever appears to be available and going with it as strongly as we can.  This is meant to be helpful and suggestive if at all possible. 

Thanks for pointing this out. 

Jim

2 July 2011

If you found this worthwhile, please share it with others.  Thanks. 

Jim Beers is a retired US Fish & Wildlife Service Wildlife Biologist,
Special Agent, Refuge Manager, Wetlands Biologist, and Congressional Fellow. He was stationed in North Dakota, Minnesota, Nebraska, New York City, and Washington DC.  He also served as a US Navy Line Officer in the western Pacific and on Adak, Alaska in the Aleutian Islands.  He has worked for the Utah Fish & Game, Minneapolis Police Department, and as a Security Supervisor in Washington, DC.  He testified three times before Congress; twice regarding the theft by the US Fish & Wildlife Service of $45 to 60 Million from State fish and wildlife funds and once in opposition to expanding Federal Invasive Species authority.  He resides in Eagan, Minnesota with his wife of many decades. 

Jim Beers is available to speak or for consulting at   jimbeers7@comcast.net