[Lurking Libertarian]

More at the link. SCOTUS has agreed to hear this case, so we should get an interesting decision on the limits of federal power.

[E. Pluribus Unum]

I'd like to see the USSC address a double-jeopardy case, where the Feds prosecute somebody for the same thing the state prosecuted them for and failed.

I don't think anybody ever intended for the state government to get one shot and the federal government to get a second.

Make up your mind who's in charge, at least.

[CIB-173RDABN]

Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.

---

I am not sure of the motive of Ms. Bond, but is it really wise to use the full weight and authorities of the Federal Government to go after an individual harassing another individual?

Ms. Bond (if guilty) should be punished, that is not the question. The question is do we really want the Federal Government to get involved in these routine day to day crimes? If so, where are the boundaries?

[workerbee]

What does the TEA Party have to do with this incident, other than give the author an excuse to trumpet his disdain for the TEA Party?

(rhetorical question)

[BocoLoco]

Only states, it said, can mount 10th Amendment challenges.

Here we go again. The "little people" don't have standing.

[yefragetuwrabrumuy]

This is a good example of why there should be a “Second Court of the United States”, created by a constitutional amendment.

It would be directly below the Supreme Court of the United States in authority, but above the federal District Courts. Importantly, the Second Court would *not* itself be a federal court.

It would be composed of 100 State judges, appointed by the individual State legislatures, as originally were US Senators, before the 17th Amendment took that power from the States and left the people without the protection of the States from federal authority.

It would serve two primary purposes. First of all, each year, some 8,000 cases are appealed to the Supreme Court, of which it can hear just a dozen or two. Since they are so overburdened, most of these cases must fall back to whatever the Circuit Courts decided, for better, or often, for worse.

A large percentage of these cases should never have entered the federal courts, as they are clearly State jurisdiction. There is no federal issue involved, though their pretends to be. So the Second Court could decide to strip them of their federal involvement entirely, and return them to State jurisdiction.

This would be by a panel of these State judges, or if necessary, it would be heard by the entire Second Court. Only if it made it through that gauntlet, regarded by those judges as a *real* constitutional question, could it make it to the docket of the SCOTUS. Reducing the caseload of the SCOTUS to perhaps a manageable 200-300 cases a year.

An example of this would be that say, the State of Maine decided to execute condemned prisoners by hanging. A federal judge intervenes and says, “No, that is cruel and unusual. You can only execute by (spins wheel), tickling their feet with ostrich feathers!”

When the case arrives at the Second Court, they decide that, no, hanging is neither cruel nor unusual. This is not a federal matter. So the case is remanded to the State with permission to carry out their sentence as they see fit.

The other primary jurisdiction of the Second Court of the United States would be original jurisdiction, to hear cases brought by the States against the federal government, or by the federal government against the States.

Right now, states must go through their State federal District judge, then to a panel of their federal Circuit Court, then the Circuit Court as a whole, and finally to the Supreme Court, a process that takes years and wastes time, because no State issue against the federal government is decided at a level lower than the SCOTUS, unless somebody just quits out of exhaustion.

So instead, if the States object to a new federal law, regulation, or executive order, they go right to the Second Court of the United States, where the States as a group decide if the federal action or authority is acceptable. If the Second Court rejects it, by a simple majority, it can still be appealed by the administration to the SCOTUS, but if a 2/3rds majority of the Second Court find against it, it is dead.

So, in effect, any part of the federal government can be eliminated by a 2/3rds majority of the Second Court, if a State challenges it, or at least whatever it is, is forwarded to the SCOTUS for constitutional review. That is, only half the States may say that the Department of Education should be abolished, but their recommendation to the SCOTUS says that they think it is constitutionally questionable, so needs to be either justified or eliminated.

It cannot “just exist” because congress wants it to. It *must* be justified as within federal authority by the SCOTUS. No weasel words allowed. If they can’t justify it, it dies.

Importantly, for the first time in US history, there would be a constitutional means to reduce the size of the federal government in an orderly process, as determined by the individual States, not the federal government itself.

Justice Clarence Thomas created a superb thesis in his concurrent decision in MacDonald vs. City of Chicago. It revitalized the 14th Amendment protections of the people, by the federal government, against abusive State governments.

However, with the 17th Amendment, the Direct Election of Senators, the power of the States to protect their citizens from an abusive federal government was lost. So while the people are protected from the States, they are not protected from the federal government, as they should be.

A Second Court of the United States would renew this protection, and return to the States their voice in the operation of the federal government. And it would do much to return the federal government to order.

[VRWCmember]

When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory. They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.

Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say. In federal court, she got six years.

Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.

She might have a problem with her argument. Article VI of the Constitution says this:

...
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
...

So if her method of distributing a chemical weapon is a violation of the treaty then it is also a violation of federal law. If a jihadi terrorist from some other country, visiting this country legally or illegally, had committed this same act of attempted murder or terrorism against a citizen or citizens of this country, we would certainly want to throw every possible charge against him, including the provisions of this treaty which have been established as part of the supreme law of the land.