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Do You Want Vinaigrette or Raich on Your Tenth Amendment Salad?

The transcript of oral argument in Bond v. United States is here.  Supreme Court arguments sometimes wander off into amusing hypotheticals, and Justice Alito had one on the potential breadth of the federal chemical weapons law at issue in this case. 

Suppose that the Petitioner in this case decided to retaliate against her former friend by pouring a bottle of vinegar in the friend's goldfish bowl. As I read this statute, that would be a violation of this statute, potentially punishable by life imprisonment, wouldn't it?
Two pages later, Justice Ginsburg reminds everyone that the merits of the defendant's challenge to the law are not at issue here, just standing.
There is some discussion about the distinction between a claim that an Act of Congress violates the Tenth Amendment and a claim that it is not within the enumerated powers listed in the Constitution (Art. I § 8 and the implementation provisions of some of the Amendments, such as § 5 of the Fourteenth).

Taking the novel approach of actually reading the Constitution, the Tenth Amendment says, "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."  The amendment confirmed what was already implicit in the original Constitution, that the federal government is limited to its enumerated powers.

In the context of this case, at least, there is no difference between a claim that the power exercised by Congress in this case was not delegated to it by the Constitution and a claim that the exercise violates the Tenth Amendment.  Going outside the delegated powers is precisely what the Amendment prohibits.  There is discussion about "commandeering" laws where Congress requires a state official to perform some duty, but getting into that would violate the principle of making constitutional decisions no broader than necessary to decide the case before the Court.

Stephen McAllister of Kansas got the task of defending the indefensible Third Circuit decision.  I predicted he would get a glowing compliment and a unanimous reversal.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Clement.

Mr. McAllister, this Court appointed you to brief and argue the case in support of the judgment below, you have ably discharged that responsibility for which we are grateful.

One down, one to go.

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