131 S.Ct. 2355 (2011)
Carol Anne BOND, Petitioner,
Supreme Court of the United States.
Argued February 22, 2011.
Decided June 16, 2011.
2359*2359 Paul D. Clement, Washington, DC, for Petitioner.
Michael R. Dreeben, for Respondent.
Stephen R. McAllister, as amicus curiae, appointed by this Court, supporting the judgment below.
Neal Kumar Katyal, Acting Solicitor General, Washington, D.C., for Respondent, supporting Petitioner.
Robert E. Goldman, Robert E. Goldman LLP, Fountainville, PA, Paul D.
Clement, Ashley C. Parrish, Candice Chiu, Paul A. Mezzina, King &
Spalding LLP, Washington, DC, Eric E. Reed, Fox Rothschild LLP,
Philadelphia, PA, for Petitioner.
Neal Kumar Katyal, Acting Solicitor General, David S. Kris, Lanny A.
Breuer, Assistant Attorneys General, Roy W. McLeese III, Acting Deputy
Solicitor General, Nicole A. Saharsky, Assistant to the Solicitor
General, John F. De Pue, Kirby A. Heller, Virginia M. Vander Jagt,
Washington, D.C., for United States supporting Petitioner.
2360*2360 Justice KENNEDY delivered the opinion of the Court.
This case presents the question whether a person indicted for
violating a federal statute has standing to challenge its validity on
grounds that, by enacting it, Congress exceeded its powers under the
Constitution, thus intruding upon the sovereignty and authority of the
The indicted defendant, petitioner here, sought to argue the
invalidity of the statute. She relied on the Tenth Amendment, and, by
extension, on the premise that Congress exceeded its powers by enacting
it in contravention of basic federalism principles. The statute, 18
U.S.C. § 229, was enacted to comply with a treaty; but petitioner
contends that, at least in the present instance, the treaty cannot be
the source of congressional power to regulate or prohibit her conduct.
The Court of Appeals held that because a State was not a party to the
federal criminal proceeding, petitioner had no standing to challenge
the statute as an infringement upon the powers reserved to the States.
Having concluded that petitioner does have standing to challenge the
federal statute on these grounds, this Court now reverses that
determination. The merits of petitioner's challenge to the statute's
validity are to be considered, in the first instance, by the Court of
Appeals on remand and are not addressed in this opinion.
This case arises from a bitter personal dispute, leading to the criminal acts charged here. Petitioner Carol Anne Bond lived outside Philadelphia, Pennsylvania. After discovering that her close friend was pregnant and that the father was Bond's husband, Bond sought revenge. Bond
subjected the woman to a campaign of harassing telephone calls and
letters, acts that resulted in a criminal conviction on a minor state
charge. Bond persisted
in her hostile acts, placing caustic substances on objects the woman was
likely to touch, including her mailbox, car door handle, and front
doorknob. Bond's victim suffered a minor burn on her hand and contacted federal investigators, who identified Bond as the perpetrator.
Bond was indicted in
the United States District Court for the Eastern District of
Pennsylvania for, among other offenses, two counts of violating § 229.
Section 229 forbids knowing possession or use of any chemical that "can
cause death, temporary incapacitation or permanent harm to humans or
animals" where not intended for a "peaceful purpose." §§ 229(a);
229F(1); (7); (8). The statute was en-acted as part of the Chemical
Weapons Convention Implementation Act of 1998, 112 Stat. 2681-856, 22
U.S.C. § 6701 et seq.; 18 U.S.C. § 229 et seq. The Act
implements provisions of the Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on
their Destruction, a treaty the United States ratified in 1997.
In the District Court, Bond
moved to dismiss the § 229 charges, contending the statute was beyond
Congress' constitutional authority to enact. The District Court denied
the motion. Bond
entered a conditional plea of guilty, reserving the right to appeal the
ruling on the validity of the statute. She was sentenced to six years in
In the Court of Appeals for the Third Circuit, Bond renewed her challenge to the statute, citing, among other authorities, 2361*2361 the Tenth Amendment to the Constitution. The Court of Appeals asked for supplemental briefs on the question whether Bond
had standing to raise the Tenth Amendment as a ground for invalidating a
federal statute in the absence of a State's participation in the
In its supplemental brief in the Court of Appeals, the Government took the position that Bond did not have standing. The Court of Appeals agreed. 581 F.3d 128 (2009).
When Bond sought certiorari, the Government advised this Court that it had changed its position and that, in its view, Bond
does have standing to challenge the constitutionality of § 229 on Tenth
Amendment grounds. See Brief for United States (filed July 9, 2010).
The Court granted certiorari, 562 U.S. ___, 131 S.Ct. 455, 178 L.Ed.2d 285 (2010), and appointed an amicus curiae to defend the judgment of the Court of Appeals. Stephen McAllister, a member of the bar of this Court, filed an amicus brief and presented an oral argument that have been of considerable assistance to the Court.
To conclude that petitioner lacks standing to challenge a federal
statute on grounds that the measure interferes with the powers reserved
to States, the Court of Appeals relied on a single sentence from this
Court's opinion in Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939). See 581 F.3d, at 136-138. As the Court of Appeals noted here, other Courts of Appeals have taken a similar approach. E.g., United States v. Hacker, 565 F.3d 522, 525-527 (C.A.8 2009); Oregon v. Legal Servs. Corp., 552 F.3d 965, 971-972 (C.A.9 2009); Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 234-235 (C.A.2 2006); Medeiros v. Vincent, 431 F.3d 25, 33-36 (C.A.1 2005); United States v. Parker, 362 F.3d 1279, 1284-1285 (C.A.10 2004). That approach is in tension, if not conflict, with decisions of some other Courts of Appeals. See Gillespie v. Indianapolis, 185 F.3d 693, 700-704 (C.A.7 1999); Metrolina Family Practice Group, P.A. v. Sullivan, 767 F.Supp. 1314 (W.D.N.C.1989), aff'd 929 F.2d 693 (C.A.4 1991); Atlanta Gas Light Co. v. United States Dept. of Energy, 666 F.2d 1359, 1368, n. 16 (C.A.11 1982); see also United States v. Johnson, 632 F.3d 912, 918-921 (C.A.5 2011) (reserving issue); Lomont v. O'Neill, 285 F.3d 9, 14, n. 5 (C.A.D.C.2002) (same); Nance v. EPA, 645 F.2d 701, 716 (C.A.9 1981) (same).
Tennessee Electric is the appropriate place to begin. It should be clear that Tennessee Electric does not cast doubt on Bond's
standing for purposes of Article III's case-or-controversy requirement.
This Court long ago disapproved of the case as authoritative respecting
Article III limitations. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). In the instant case, moreover, it is apparent—and in fact conceded not only by the Government but also by amicus—that
Article III poses no barrier. One who seeks to initiate or continue
proceedings in federal court must demonstrate, among other requirements,
both standing to obtain the relief requested, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992),
and, in addition, an "ongoing interest in the dispute" on the part of
the opposing party that is sufficient to establish "concrete
adverseness." Camreta v. Greene, 563 U.S. ___, ___, 131 S.Ct. 2020, 2028, ___ L.Ed.2d ___ (2011)
(internal quotation marks omitted). When those conditions are met,
Article III does not restrict the opposing party's ability to object to
relief being sought at its expense. 2362*2362 The requirement of Article III standing thus had no bearing upon Bond's capacity to assert defenses in the District Court. As for Bond's standing to appeal, it is clear Article III's prerequisites are met. Bond's
challenge to her conviction and sentence "satisfies the
case-or-controversy requirement, because the incarceration . . .
constitutes a concrete injury, caused by the conviction and redressable
by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).
To resolve the case, this Court must consider next whether Tennessee Electric is irrelevant with respect to prudential rules of standing as well. The question in Tennessee Electric
was whether a group of private power companies could bring suit to
enjoin the federally chartered Tennessee Valley Authority (TVA) from
producing and selling electric power. It was conceded that competition
from the TVA would "inflict substantial damage" upon the power
companies. 306 U.S., at 137, 59 S.Ct. 366.
According to the companies, the federal statute authorizing the
creation and operation of the TVA was invalid because, among other
reasons, it exceeded the powers of the National Government in violation
of the Tenth Amendment.
Declining to reach the merits, the Court concluded the power
companies' lawsuit should be dismissed. It explained that the suit was
premised on the principle that a person threatened with injury by
conduct "which, but for statutory authority for its performance, would
be a violation of his legal rights" could request an injunction from a
court of equity and by this means test the validity of the statute. Ibid.
But the Court concluded that the TVA, even if it were shorn of
congressional statutory authority, had done nothing more than compete as
a supplier of electricity. Id., at 138, 59 S.Ct. 366. And since
state law did not purport to grant any of the power companies a
monopoly, there was no basis for a suit in which the TVA might be forced
to invoke its congressional authorization. Id., at 138-143, 59 S.Ct. 366.
In that part of its analysis, and throughout its opinion, the Tennessee Electric
Court stated that the problem with the power companies' suit was a lack
of "standing" or a "cause of action." It treated those concepts as
interchangeable. E.g., id., at 139, 59 S.Ct. 366 (no "standing" because no "legal cause of complaint"); id., at 139-140, 59 S.Ct. 366 (no "standing" without "a cause of action or a right to sue"); id., at 142, 59 S.Ct. 366 ("no standing," no "right to sue for an injunction"); id.,
at 144, 59 S.Ct. 366 (no Tenth Amendment "standing" and no Ninth
Amendment "cause of action" for same reasons); see also Bellia, Article
III and the Cause of Action, 89 Iowa L.Rev. 777, 826-830 (2004).
Even though decisions since Tennessee Electric have been
careful to use the terms "cause of action" and "standing" with more
precision, the distinct concepts can be difficult to keep separate. If,
for instance, the person alleging injury is remote from the zone of
interests a statute protects, whether there is a legal injury at all and
whether the particular litigant is one who may assert it can involve
similar inquiries. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 96-97, and n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)
(noting that statutory standing and the existence of a cause of action
are "closely connected" and "sometimes identical" questions).
Still, the question whether a plaintiff states a claim for relief
"goes to the merits" in the typical case, not the justiciability of a
dispute, id., at 92, 118 S.Ct. 1003, and conflation of the two
concepts can cause confusion. This is the case with the Tenth Amendment
discussion in Tennessee 2363*2363 Electric. The Tennessee Electric
Court noted that "[a] distinct ground upon which standing to maintain
the suit is said to rest is that the acts of the Authority cannot be
upheld without permitting federal regulation of purely local matters
reserved to the states or the people by the Tenth Amendment." 306 U.S., at 143, 59 S.Ct. 366.
The Court rejected the argument, however, concluding the Tenth
Amendment did not give one business a right to keep another from
competing. Id., at 144, 59 S.Ct. 366. ("The sale of government property in competition with others is not a violation of the Tenth Amendment").
The Court then added the sentence upon which the Court of Appeals
relied in the instant case, the sentence that has been the source of
disagreement among Courts of Appeals:
"As we have seen there is no objection to the Authority's
operations by the states, and, if this were not so, the appellants,
absent the states or their officers, have no standing in this suit to
raise any question under the amendment." Ibid.
The quoted statement was in the context of a decision which held that
business competitors had no legal injury, and the word standing can be
interpreted in that sense. On this reading, the statement reiterated an
earlier point. The statement explained that the States in which the TVA
operated exempted it from their public utilities regulations; and that
even if the States had not done so and the TVA had violated those
regulations, the regulations were for the States to enforce. See id.,
at 141-142, 59 S.Ct. 366. They conferred no private right of action on
business competitors. This reading is consistent with the Tennessee Electric
Court's use of the term "standing" elsewhere in its opinion to refer to
the existence of a state-law cause of action. A holding that state
utilities regulations did not supply a cause of action against a
competitor is of no relevance to the instant case, and we need not
explore all of its implications. See also Data Processing, 397 U.S., at 157-158, 90 S.Ct. 827
(cause of action under the Administrative Procedure Act, 5 U.S.C. §
702, permits suit based on injury from business competition).
Yet the quoted statement also could be read to refer to standing in
the sense of whether the power companies were the proper litigants to
raise a Tenth Amendment issue. To the extent that might have been the
intention of the Tennessee Electric Court, it is, for reasons to be explained, inconsistent with our later precedents. The sentence from Tennessee Electric
that we have quoted and discussed should be deemed neither controlling
nor instructive on the issue of standing as that term is now defined and
Amicus contends that federal courts should not adjudicate a claim like Bond's
because of the prudential rule that a party "generally must assert his
own legal rights and interests, and cannot rest his claim to relief on
the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see also Kowalski v. Tesmer, 543 U.S. 125, 129-130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). In amicus'
view, to argue that the National Government has interfered with state
sovereignty in violation of the Tenth Amendment is to assert the legal
rights and interests of States and States alone. That, however, is not
so. As explained below, Bond
seeks to vindicate her own constitutional interests. The individual, in
a proper case, can assert injury from governmental action taken in 2364*2364 excess of the authority that federalism defines. Her rights in this regard do not belong to a State.
The federal system rests on what might at first seem a
counterintuitive insight, that "freedom is enhanced by the creation of
two governments, not one." Alden v. Maine, 527 U.S. 706, 758, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).
The Framers concluded that allocation of powers between the National
Government and the States enhances freedom, first by protecting the
integrity of the governments themselves, and second by protecting the
people, from whom all governmental powers are derived.
Federalism has more than one dynamic. It is true that the federal
structure serves to grant and delimit the prerogatives and
responsibilities of the States and the National Government vis-a-vis one
another. The allocation of powers in our federal system preserves the
integrity, dignity, and residual sovereignty of the States. The federal
balance is, in part, an end in itself, to ensure that States function as
political entities in their own right.
But that is not its exclusive sphere of operation. Federalism is more
than an exercise in setting the boundary between different institutions
of government for their own integrity. "State sovereignty is not just
an end in itself: `Rather, federalism secures to citizens the liberties
that derive from the diffusion of sovereign power.'" New York v. United States, 505 U.S. 144, 181, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (quoting Coleman v. Thompson, 501 U.S. 722, 759, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (Blackmun, J., dissenting)).
Some of these liberties are of a political character. The federal
structure allows local policies "more sensitive to the diverse needs of a
heterogeneous society," permits "innovation and experimentation,"
enables greater citizen "involvement in democratic processes," and makes
government "more responsive by putting the States in competition for a
mobile citizenry." Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991).
Federalism secures the freedom of the individual. It allows States to
respond, through the enactment of positive law, to the initiative of
those who seek a voice in shaping the destiny of their own times without
having to rely solely upon the political processes that control a
remote central power. True, of course, these objects cannot be
vindicated by the Judiciary in the absence of a proper case or
controversy; but the individual liberty secured by federalism is not
simply derivative of the rights of the States.
Federalism also protects the liberty of all persons within a State by
ensuring that laws enacted in excess of delegated governmental power
cannot direct or control their actions. See ibid. 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.
The limitations that federalism entails are not therefore a matter of
rights belonging only to the States. States are not the sole intended
beneficiaries of federalism. See New York, supra, at 181, 112 S.Ct. 2408.
An individual has a direct interest in objecting to laws that upset the
constitutional balance between the National Government and the States
when the enforcement of those laws causes injury that is concrete,
particular, and redressable. Fidelity to principles of federalism is not
for the States alone to vindicate.
recognition of an injured person's standing to object to a violation of a
constitutional principle that allocates power within government is
illustrated, in an analogous context, by cases in which individuals
sustain discrete, justiciable injury from actions that transgress
separation-of-powers limitations. Separation-of-powers principles are
intended, in part, to protect each branch of government from incursion
by the others. Yet the dynamic between and among the branches is not the
only object of the Constitution's concern. The structural principles
secured by the separation of powers protect the individual as well.
In the precedents of this Court, the claims of individuals—not of
Government departments—have been the principal source of judicial
decisions concerning separation of powers and checks and balances. For
example, the requirement that a bill enacted by Congress be presented to
the President for signature before it can become law gives the
President a check over Congress' exercise of legislative power. See U.S.
Const., Art. I, § 7. Yet individuals, too, are protected by the
operations of separation of powers and checks and balances; and they are
not disabled from relying on those principles in otherwise justiciable
cases and controversies. In INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983),
it was an individual who successfully challenged the so-called
legislative veto—a procedure that Congress used in an attempt to
invalidate an executive determination without presenting the measure to
the President. The procedure diminished the role of the Executive, but
the challenger sought to protect not the prerogatives of the Presidency
as such but rather his own right to avoid deportation under an invalid
order. Chadha's challenge was sustained. A cardinal principle of
separation of powers was vindicated at the insistence of an individual,
indeed one who was not a citizen of the United States but who still was a
person whose liberty was at risk.
Chadha is not unique in this respect. Compare Clinton v. City of New York, 524 U.S. 417, 433-436, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (injured parties have standing to challenge Presidential line-item veto) with Raines v. Byrd, 521 U.S. 811, 829-830, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (Congress Members do not); see also, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. ___, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995); Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935).
If the constitutional structure of our Government that protects
individual liberty is compromised, individuals who suffer otherwise
justiciable injury may object.
Just as it is appropriate for an individual, in a proper case, to
invoke separation-of-powers or checks-and-balances constraints, so too
may a litigant, in a proper case, challenge a law as enacted in
contravention of constitutional principles of federalism. That claim
need not depend on the vicarious assertion of a State's constitutional
interests, even if a State's constitutional interests are also
In this regard it is necessary to address a misconception in the position the Government now urges this Court to adopt. As 2366*2366
noted, the Government agrees that petitioner has standing to challenge
the validity of § 229. That concession, however, depends on describing
petitioner's claim in a narrow way. The Government contends petitioner
asserts only that Congress could not enact the challenged statute under
its enumerated powers. Were she to argue, the Government insists, that
the statute "interferes with a specific aspect of state sovereignty,"
either instead of or in addition to her enumerated powers contention,
the Court should deny her standing. Brief for United States 18 (filed
Dec. 3, 2010).
The premise that petitioner does or should avoid making an "interference-with-sovereignty" argument is flawed. Id.,
at 33. Here she asserts, for example, 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.
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, and action that exceeds the National Government's 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." Frothingham v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (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.
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 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 2367*2367 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 (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.
* * *
There is no basis in precedent or principle to deny petitioner's
standing to raise her claims. The ultimate issue of the statute's
validity turns in part on whether the law can be deemed "necessary and
proper for carrying into Execution" the President's Article II, § 2
Treaty Power, see U.S.
Const., Art. I, § 8, cl. 18. This Court expresses no view on the merits
of that argument. It can be addressed by the Court of Appeals on remand.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice GINSBURG, with whom Justice BREYER joins, concurring.
I join the Court's opinion and write separately to make the following observation. Bond,
like any other defendant, has a personal right not to be convicted
under a constitutionally invalid law. See Fallon, As-Applied and Facial
Challenges and Third-Party Standing, 113 Harv. L.Rev. 1321, 1331-1333
(2000); Monaghan, Overbreadth, 1981 Sup.Ct. Rev. 1, 3. See also North Carolina v. Pearce, 395 U.S. 711, 739, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (Black, J., concurring in part and dissenting in part) ("Due process . . . is a guarantee that a man should be tried and convicted only in accordance with valid laws of the land.").
In this case, Bond
argues that the statute under which she was charged, 18 U.S.C. § 229,
exceeds Congress' enumerated powers and violates the Tenth Amendment.
Other defendants might assert that a law exceeds Congress' power because
it violates the Ex Post Facto Clause, or the Establishment Clause, or
the Due Process Clause. Whatever the claim, success on the merits would
require reversal of the conviction. "An offence created by [an
unconstitutional law]," the Court has held, "is not a crime." Ex parte Siebold, 100 U.S. 371, 376, 25 L.Ed. 717 (1880).
"A conviction under [such a law] is not merely erroneous, but is
illegal and void, and cannot be a legal cause of imprisonment." Id., at 376-377. If a law is invalid as applied to the criminal defendant's conduct, the defendant is entitled to go free.
For this reason, a court has no "prudential" license to decline to
consider whether the statute under which the defendant has been charged
lacks constitutional application to her conduct. And that is so even
where the constitutional provision that would render the conviction void
is directed at protecting a party not before the Court. Our decisions
concerning criminal laws infected with discrimination are illustrative.
The Court must entertain the objection—and reverse the conviction—even
if the right to equal treatment resides in someone other than the
defendant. See Eisenstadt v. Baird, 405 U.S. 438, 452-455, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)
(reversing conviction for distributing contraceptives because the law
banning distribution violated the recipient's right to equal
protection); cf. Craig v. Boren, 429 U.S. 190, 192, 210,
and n. 24, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (law penalizing sale of
beer to males but not females aged 18 to 20 could not be enforced
against vendor). See also Grayned v. City of Rockford, 408 U.S. 104, 107, n. 2, 92 S.Ct. 2294, 33 2368*2368 L.Ed.2d 222 (1972); Welsh v. United States, 398 U.S. 333, 361-362, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in result)
(reversal required even if, going forward, Congress would cure the
unequal treatment by extending rather than invalidating the criminal
In short, a law "beyond the power of Congress," for any reason, is "no law at all." Nigro v. United States, 276 U.S. 332, 341, 48 S.Ct. 388, 72 L.Ed. 600 (1928). The validity of Bond's
conviction depends upon whether the Constitution permits Congress to
enact § 229. Her claim that it does not must be considered and decided
on the merits.
Cruikshank v. US, 467 F. Supp. 539 - Dist. Court, D. Hawaii 1979