individual can challenge laws using the 10th amendment. she was charged and appealing a third circut court of appeals rules that she cannot challenge the federal government charging her with a chemical weapons law intended to prosecute terrorists. the case is bond vs. the united states. >> number 091227, bond vs. united states. >> mr. chief justice, and may it please the court. the standing of the petitioner to challenge the constitutionality of the federal statute under which her liberty is deprived should not be opened to serious question. she clearly satisfies this court's test for sending. it is hard to understand an injury more concrete than six years in federal prison. it is her own and not some third party's. i think standing is a bit of a misno , ma'amer here -- misnomer. she's a defendant in court held by a federal prosecutor. there's no logical reason she cannot mount a constitutional attack on the statute that is the basis for the prosecution. >> any of our opinions talk about the standing of the descendent? i can't think of one at the moment. >> i think it's in the habeas context, but when you have a criminal deft or someone serving a sentence, they are standing to challenge the conviction is one of the easiest standing cases you can imagine. i think in a sense, the same principles apply here. the standing is normally something you think about applying to the plaintiffs who invoke the jurisdiction of the court. what's at issue here is really something more of a bar on somebody's ability to make an argument that would vermont their liberty. i see no reason why in logic that should be the case. the court of appeals essentially didn't apply -- >> there are certainly some arguments you can make as a defendant for which you have no standing. are you saying there's no argument for a defendant on which you have no standing? >> i'm not sure it's normal standing principles, your honor. there's some that have no business with your case, and there's arguments you can make that have nothing to do -- >> won't it raids anti-- raise antiestablishment clause objection in a manner that does not involve legislation in which our opinions say therefore does not violate the establishment clause. >> i have to know why you were a defendant in that case and why it had to do with the price of key in that particular case. >> no, you wouldn't. all you have to know is that the claim is based upon -- is not based upon a statute and that our establishment clause jurisprudence says not based upon a statute, it doesn't violate the establishment clause. >> with respect, i don't think that follows. if the federal executive tried to em prison you based on religion, you can take issue with that. the problem in your recent case, the -- >> i'm saying the exercise clause of the violation, and you don't these the exercise clause for that. >> if we're therefore imprisoning you, you can bring that claim. in all events bringing us back to the case before you, i think there's no reason to think that ordinary principles of standing wouldn't give my client every ability to challenge the constitutionality of the statute. >> in the case before us, are you making any claims other than that congress was acting outside the enumerated powers in enacting this statute? is there any 10th amendment claims you're making? in other words you admit congress is acting within its powers, and yet the action violates the 10th amendment. are you making claims of that sort, or are all your claims that the statute here goes beyond congress' ability to enact it under article i. >> well, justice kagan, it's a principally argued powers. i'm not sure understand some 10th amendment claims that are only unique. >> let's just use the case and say that even though congress might have the ability to enact the statute, there's limitations. do you have a claim like that in this case in >> i don't think so. take the prince case. the prince case went out of its way to say an enumerated case. this is not separate from enumerated powers. >> let's assume mr. clem clemson ents that it is. do you have any claims like that? >> i don't think so, justice kagan, but i don't want to make the case that the government thinks is not enough of a government empowered claim. >> government agrees it's an enumerated power claim in this case. >> again, justice jins berg, that's the basis of the claim. >> you are at no risk if the fault were limited to what both of you are involved in article i section viii and if there's a difference in claims. when the case arises, we can deal with it. >> well, justice ginsburg, you did deal with that and as long as there's no articles against my client, i guess that's fair enough for my client. the arguments we preserved, for example, is the preserve is it's not a blank check for the government, but requires the balancing of interests. if we talk both the state's interest in criminal prosecution and law enforcement, i would hate for a trap door to open up at that point, and i'm told, wait, wait, wait, that's too much of the state's interest and not your own interest. >> you want us to say when there's a specific injury spect to your client that your client has the right to make any argument to show that the government has exceeded its powers under the constitution because they are limited to protect the liberties of the individual? >> exactly right, justice kennedy. that's the fundamental worry i have here is that the courts have not drawn a distinction between the claims. the two cases the government points to, new york and prince, both go out of the way to say they are enumerated power claims because a law that common is not necessary and proper. part of the problem with the suggestion that somehow tennessee electorates are reestablished is that it miscomprehends who the provisions are there for. they are there to protect the liberty of citizens. the court made that clear in the free enterprise fund last term. it was not the executive complaining. the executive branch ably defended this court. it was a disgruntled accounting firm. >> can't there be some 10th amendment claims going to just state prerogatives and not the rights of individuals? let's say there's a statute that purports to regulate where a state locates its capital or the contents of the state flag or something like that, isn't that just state prerogative and not individual rights 1234 >> i think it would. my point is that there's not some special rule. my point is that we should just apply the normal rules, and what i don't think 1 sustainable is the proposition in claims that an individual never has standing. imagine a statute that support the federal money by commoneer commoneerring argument of defense. it's not any difference if they use the general to bring criminal prosecutions. >> you're not making a plan, so are you making a common dearing plan? >> i'm not self-eyeing to have done so. [laughter] we're not asking you to do anything special, but it's the government asking you to go out of your way to realize this as a different case and preserve it. >> the problem is if you're just making a treaty power claim, then how are you going to possibly win on reman in the third circuit if we reverse and say your client has standings? do you think it falls within the prerogatives of the court of appeals to say that ozari vs. holland was wrong? >> first, this is a technical matter. we could go back to the third circut on the way here and i think it's a mistake to think that it is some bright lined rule that forever answers this question. as i read that case and we qleerly argued before the third kir cut, it's not a blank check but a balancing test that looks at the state's interest and the federal's interest in aseesing whether or not the statute that implements the treaty is necessary aproper, and i think this case compares favorably with that case. the state interest because the birds were flying through on their way and there's no state interest or so the case held. this case, the state has a real interest in the law enforcement. i also think we ought to -- >> that depend on the nature of the chemical involved. suppose it was a chemical that people normally understand the kind of chemical used in a chemical weapon. let's say it's serrin. does it matter this case doesn't involve something like that in >> i think it does. it matters in part for a constitutional avoidance of construction argument which i think also ought to be open to us. i think analogy to the jones case where the federal statute of arson doesn't apply when a cousin throws a cocktail at a residence. >> that's merit questions. >> i'm just trying to respond to the question. >> i thought we were just doing standing. >> we're not asking you to do more than standing, but i think it's important to understand that we don't think we would be sort of limited to just losing on the case and coming back up. we have a good argument about against hole land and think there's statutory construction argument. there's something odd about the government's theory of buying a chemical weapon on amazon.com. that's odd. it's the kind of construction argument to say, well, maybe cairn or chemical weapons is one thing, but with respect to the commonly available chemical without to say any jurisdictional element -- we ought to have standing to make. >> one thing that the strongest point against you, i think, is the single sentence in the case. it's only one sentence, but it's in the opinion. i think what it's saying justice roberts says, well, he already just finished saying nobody -- congress hasn't violated some rule against creating a system of regulation in the statute because it isn't regulation, but then he said even if it were, even if it were, and if your complaint was that congress x acted outside its authority which they might have thought at that time in creating a system, tba, that competes with local systems even if that were so, the appellant's absent the state or their officers would have no standing in this suit to raise the question. okay. now, that takes quite a lot on, but that's what it says. are we to say that's an ill considered? or it was wrong? are we supposed to say the law changed? what in your view are we supposed to say? >> well, two things about that sentence, and then explain what i think you should say. first of all, the first thing i say about that sentence is that i don't think read with the the context of the entire opinion means the court is trying to impose a special disability on 10th amendment claims. remember, they already rejected the plaintiff's basis for having standing. >> it comes out of left field, and it's overall even-if. i guess that doesn't count. >> it's indicative in another way. it rejects the argument that if you don't otherwise have standing under the governing standing rule of the day, that you somehow have a special license to bring a 10th amendment claim, if that's what it stands for what was right then and continues to be rights. a second point is it is victim. if you read the sentence, what it says is the following. it makes a reference to what it's already established a couple of paragraphs earlier which is the state's at issue here passed laws to accommodate the sales of power. it goes on to say if this were not so, well, what is that? it's a hypothetical. it's the worst kind of victim. if this was not so, if it was not that the states took action to affirmatively accommodate, then there's a different question and no standing. it is victim and disregarded as such, but really, if you ask what you should do with it, do what you did with some language and opinion that it continues to cause trouble in the 50 years since. that's moo longer -- no longer good law. it's not. the central holding of the tennessee electorat was overthrown years ago. i think this language of the peace of the legal entrance test of standing, and i think the court should make clear it doesn't apply any longer, and the virtue of that is it frees up the lower courts to decide the claims based on an application of principles. that's not happening in the lower court right now. in the lower court right now is somebody comes in with a 10th amendment claim of whatever stripe, and what they are confronted with is a quick citation of tennessee elect and others who overturn the decisions, and that's it. nothing subtle about the particular claim, and that's not a sustainable situation. in fact, i reserve the remainder of any time. >> thank you mr. clement. >> thank you chief justice. as confirmed this morning, the claim made about the unconstitutionality of section 229 is it under mind the powers. he wishes to waive part of that claim as an argument that it invades the problems that belong to the state concerning criminal law. he can do that. he has the authority to make such a challenge and the holding to the contrary. the third circuit in reaching the conclusion relied on this court's decision in tennessee vs. tda. we think that the court of appeals misread that case in concluding that it is our standing not because it lacked the holding that does bar standing of certain types of claims that allege an invasion of state sovereignty, but because the kind of claim that petitioner is making is not a 10th amendment reserved rights claim, but instead an enumerated power's claim. >> it's kind of hard under precedence to draw that precise line between enumerated powers and the 10th amendment, and it seems a bit much to put the defendant to the trouble of trying to do that under the theory from tba that they have no standing to make a particular type of 10th amendment claim. >> mr. chief justice, i don't think the defendant needs to be put in any trouble in this case. the kind of claim that counsel is making on her behalf does assert her right not to be subject to criminal punishment under a law that he says, counsel says, congress lacks the authority to enact. >> well, what if she argues on remand, if there is a remand, that assumes for the sake of argument, congress can enact any law that is necessary and proper to implement a treaty, the 10th amendment prohibits certain law that intrude to heavily on state law prerogatives, state police power, if she makes that argument, where does that fall? >> the enumerated category power. just like a case last year, one the elements this court looked at when it decided whether the law authorizing civil commitment in that case was within congress' enumerated authority and the necessary and proper clause, the court looked at to which the law accommodated state interest or invaded them in an unlawful matter which is what mr. comstock alleged in that case. >> you want us to say even if a defendant in some case in a constitutional violation is causing that defendant specific injury that the defendant may not be able to raise the claim of what you call a sovereignty claim. in thornton vs. arkansas, the term limits case, we allowed a citizen of a state to bring a challenge, to a statute that the state that it acted inconsistently with its federal powers. now, that's a flip side, that was state statute and not a federal statute, but it seems that's in position with the statement you take. it seems inconsistent with the rule of separation of powers claims can be presented by defendants. in clinton vs. new york, a veto case. the whole point of separation of powers, the whole point of federalism is that it adheres to the individuals and his or her right to liberty, and if that is infringed by a criminal conviction or in any other way that causes specific injury, why can't it be raised? i just don't understand your point. >> justice kennedy, i don't take issue with almost everything that you said. the structural protections of the constitution can be enforced by individuals under the cases that you have sited. what we are dealing with are two things. first of all, a statement this court said that was port of its holding addressed to what the court perceived as an attack based on a specific aspect of state sovereignty that belonged to the states. now, today, we might not understand the claim that we made in that case has implicating a specific sovereign right protected under the 10th amendment. today we might look at it and say this is nothing other than a preemption claim. >> i don't know if that's a correct characterize of the case made. the discussion of the 10th amendment generally follows a caption that the power to dispose of federal property does not include any power to regulate local activities. i don't understand why that isn't the same kind of delegated powers argument that you say petitioner here is raising. >> that may be, justice alito, i think it's hard to judge precisely what they were arguing, but this court understood the claim as one that bore on federal regulation of purely local matters in a matter that regulated the internal affairs of the state, and i agree with you today that we might not view that as a 10th amendment claim, but this court did in 1939. >> why didn't it just consider it outside the commerce clause? that had a lot of lure. what is the distinction between saying as they said then, court, the tba regulates electricity rates in memphis, and that's beyond the power of congress to enact. in this case, because of the 10th amendment and a lot of other things, and this seems the same, beyond the power of congress to enact. >> through today's analytical model, today's jurisprudence, that's how the case would be proved. >> how do we know that? i'm not doubting you, i just want to know. >> the sentence that you in fact read discussing whether the presence or absence of the state objection mattered, the court said as we see there's no objection from the state and if this were no so the appellant's state and officers have no standing to raise any objection under the amendment. >> let's assume this hypothetical. just that case, tba, state, the federal government sets the price, and someone's accused of violating that price. can that defendant come in and say tba, that's unconstitutional because prices have to be set by the state. can the defendant say that, or is than a claim that they are barred? >> that's the kind of claim today we con deny con con accept chewablize. >> give me a hypothetical of a defendant convicted where it's a pure claim that you say they have no standing for. imagine going back to justice kennedy's question because i wanted to answer the part that i thought distinguished a case that i thought justice kennedy talked about. it's best made in the context of an example. under the sex offender registration act, defendants have challenged the law on numerous grounds including number one, congress lacks its constitutional authority under the commerce clause and the necessary and proper clause to criminalize the individual registration requirement imposed on them. all courts that have addressed that said that's a claim that's within the cognizance of a defendant to break. defendants have also said the statute violates federal law because it requires states to accept sex offender registrations and comom deers the states to have the status. >> if the defendant prevails on that argument presumably the statute is invalidated and the conviction is overthrown. why doesn't the defendant have the appropriate interest to raise that argument? >> justice kagan, this is the crucial point we've been discussing this morning. a state can choose to establish a sex offender data base and to receive registrations from people who are required to reg strer under -- register under federal law, and validating a federal law that commanded them to do that does not deprive the state of its ability to say we want to have in our sovereign interest a sex offender data base that will receive these applications, and as a result -- >> you're saying there's no violation. >> that's correct. >> ever