As noted in the orders list post, the Supreme Court today took up the case of Bond v. United States, No. 09-1227. In that case, the Third Circuit held that Ms. Bond does not have standing to complaint that the criminal statute under which she was convicted exceed the enumerated powers of Congress, at least as applied to her. On the limited question of standing, the Solicitor General agreed with the defendant.
Petitioner contends (Pet. 19-26) that the court of appeals erred in concluding that she does not have standing to assert a claim that 18 U.S.C. 229 exceeded Congress's enumerated powers and thus violates the Tenth Amendment. The government agrees with that contention. A criminal defendant has standing to defend herself by arguing that the statute under which she is being prosecuted was beyond Congress's Article I authority to enact. The court of appeals' contrary conclusion was based on this Court's statement in TVA, supra, that the private parties in that civil case "ha[d] no standing to raise any question * * * under the [Tenth] [A]mendment" "absent the states or their officers" as parties to the litigation. 306 U.S. at 144; see Pet. App. 11. That portion of TVA addressed a distinct kind of Tenth Amendment claim involving unwarranted intrusions into State sovereignty and not a claim, like that here, that a statute exceeds Congress's enumerated powers. The Court has repeatedly permitted private parties to press such enumerated-power claims, and the court of appeals erred by not doing so here. The Court should grant the petition, vacate the judgment of the court of appeals, and remand for further proceedings in light of the position of the United States asserted in this brief.But the Court did not "GVR." They took the case for full briefing and argument. So an amicus will be appointed to argue the position held by the court of appeals but abandoned by the SG. He or she will get a glowingly complementary footnote in the opinion and a unanimous (or nearly so) defeat.