University of San Francisco Law Review
Scott G. Thompson and Christopher Klimmek, Tenth Amendment Challenges After Bond v. United States, 46 U.S.F. L. Rev. 995 (2012), available at https://scholar.law.colorado.edu/faculty-articles/478.
In its recent decision in Bond v. United States, the Supreme Court explained that because the Tenth Amendment "secures the freedom of the individual," private parties who otherwise satisfy Article III's standing requirements and other prudential requirements may challenge federal laws as violating the Tenth Amendment. In so doing, the Court reversed the majority of circuit courts that have addressed the issue and removed a significant categorical bar to individual Tenth Amendment challenges. This Article explains Bond's holding and explores its implications for future Tenth Amendment challenges by private parties.
Although Bond contains some expansive language regarding the role of Tenth Amendment in protecting individual liberties, it should not be read too broadly. Bond clarified that the Tenth Amendment protects individual liberties and thus prudential, third-party standing principles do not prevent individuals from bringing a Tenth Amendment challenge against federal statutes that impair their liberties. But Bond also made clear that individual Tenth Amendment challenges must satisfy traditional Article III standing requirements and that not every violation of the Tenth Amendment automatically entails an impairment of individual liberty that supports standing. As a result, Article III standing requirements will hinder many individual Tenth Amendment challenges, and many individual challenges will not succeed without the support of states. Thus, despite the breadth of the Court's language in Bond, states may significantly influence whether private parties can successfully assert the states' sovereign interests in a Tenth Amendment challenge.
Litigants must understand these limitations as they attempt to use Bond to challenge federal statutes that, until this point, have been protected from individual suits by the bar that most courts of appeals have imposed on private-party Tenth Amendment standing. Put succinctly, while Bond rightly removed the prudential bar to individual Tenth Amendment challenges, it did not confer Article III standing to each and every litigant alleging a Tenth Amendment injury. Litigants will still need to separately satisfy the Article III requirements, blunting the impact of Bond and likely insulating many federal statutes from individual Tenth Amendment challenges.
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