The Supreme Court said that individuals may sue when laws are unconstitutional. The health care reform bill could face 70 new challenges.

What did the Supreme Court say?

In Bond v. United States, the Court ruled last week (June 16) that any citizen may sue the government to say that a law infringes on the reserved powers of the States, and so breaks the Constitution. Lower courts have held that only a State has the right (or standing) to sue the government on that ground. Reserved-power infringement harms a State, not its citizens, or so the theory says. The Court rejected that theory, 9-0. When the federal government passes a law in an area that is the State’s business only, that harms individual liberty. So any person who has lost any liberty under that law may sue to get it back. So said Justice Anthony Kennedy, writing for the court.

What were the details?

Mrs. Bond, the petitioner, said that the federal government took away some of her liberty by making a federal case out of what should have been a State case. She harassed someone by putting a caustic substance on the other person’s mailbox, car door handle, front doorknob, and so on. That should have been a simple matter for local police and prosecutors. But in 1998, Congress passed this law to obey a United Nations treaty (the Chemical Weapons Convention). The law makes it a federal felony to keep any chemical that could hurt somebody, for any “non-peaceful” reason.

Mrs. Bond moved to dismiss the federal charges, saying that the federal law interfered in State business. The District Court for the Eastern District of Pennsylvania denied the motion. Mrs. Bond went through the trial, and then appealed to the Third Circuit in Philadelphia. The federal government then said that she had no standing to sue on such grounds. By their theory, if Pennsylvania felt that Washington was threatening its sovereignty, then Pennsylvania could sue. But a mere resident of Pennsylvania could not.

Mrs. Bond petitioned for certiorari to the Supreme Court. Then the federal government did a curious thing: they took back everything they had said about her not having standing. They probably wanted the case to go away. That did not happen. The court granted certiorari, and then appointed a “friend of the court” to defend the judgment of the Third Circuit Court.

The Court heard oral argument on February 22. It decided the case today.

What does this mean for the health care reform bill?

It means that the Supreme Court has set a binding precedent that recognizes that any citizen may petition the courts for relief when the government does something unconstitutional. Like, just possibly, the massive health care reform bill that Congress passed last spring.

Nick Purpura is the lead plaintiff in Purpura v. Sebelius, one of many cases that say that the health care reform bill (HR 3590) is unconstitutional. He told your editor today that this decision could reopen 70 cases that individual citizens have brought against the health care reform bill. Various courts have thrown these cases out, saying that the citizens had no standing. (That is exactly what the New Jersey District Court did in the Purpura case.) Now the Bond case directly contradicts any reasoning that those courts might have used.

Purpura found several reasons to hope that he and his friend Donald R. Laster Jr. will win:

He and Laster, like Mrs. Bond, are ordinary citizens petitioning their government. The Bond case came from the Third Circuit, the same Circuit where their appeal has gone. The Supreme Court’s vote was unanimous, and included the two Obama appointees. Justice Anthony Kennedy, the usual “swing vote,” wrote for the court. The government was ready to throw away a conviction on a chemical-weapons charge just to avoid a Supreme Court precedent—and they could not avoid it.

Laster, when your editor reached him, said, “Praise the Lord and pass the ammunition!” He then said that the case meant far more than letting them proceed against the health care reform bill. In particular, the Bond case will test whether Congress has any authority to impose on a State’s sovereignty just because the United Nations says it must. He mentioned specifically the proposed United Nations Small Arms Convention that Secretary of State Hillary Clinton is trying to negotiate.

Where does the Purpura case stand?

The Justice Department has asked for more time than the 30 days that it would usually have to respond to their appeal. (Purpura and Laster appealed immediately after Judge Freda Wolfson said that they lacked standing.) Their reasons, according to Purpura and Laster, are utterly specious. They say that they have never received any extension of time (untrue), and they need more time to answer several other cases against the health care reform bill that are already on appeal, to the Third and other Circuits.

But today, Purpura and Laster mentioned another problem. A large number of judges on the Third Circuit Court have recused themselves. An unnamed source in the clerk’s office told Purpura and Laster that he could not tell them which three judges would form the first panel to hear the appeal, on account of those recusals. Purpura and Laster have requested in writing that the clerk tell them exactly how many judges have recused themselves, and which ones.

The Purpura case has a specific count (Count 15) saying that the health care reform bill impinges on State reserved powers. But the language of Bond gives a person standing on any ground that involves his liberty:

In arguing that the Government has acted in excess of the authority that federalism defines, [petitioner] seeks to vindicate her own constitutional interests.

Likewise, Purpura and Laster seek to vindicate their constitutional interests. They have identified fifteen interests that the health care reform bill threatens. The Bond decision would seem to vindicate their right to sue to protect all of them. Any one of the fifteen counts could sink the health care reform bill. And this is just one case among more than 70.

Featured image: the United States Constitution. Photo: National Archives.