the spencer decision does talk about standing to challenge the conviction. it is essentially one of the easiest standing cases you can imagine. the same principles would apply here. standing is normally something you think about as applying to the plaintiff invoking the jurisdiction of the court. what is really at interest here is more of a bar on someone's ability to make an argument that would vindicate their liberty. i see no reason why that should be the case. the court of appeals did not apply -- >> there are some arguments you could make as a defendant for which you have no standing. are you saying there is no argument you could make as a defendant for which you have no standing? >> there are certainly arguments you could make that would have

no business to do with your case. their arguments to could make the would -- >> and the establishment clause objection raised in a matter that does not involve legislation and which our recent opinions say do not violate the establishment clause. >> i would have to know why you were a defendant and why it had anything to do with the price of tea in that particular case. >> know, you would not. all you would have to know is that the claim is based upon a statute -- is not based upon a statute. and that our establishment clause jurisprudence says if it is not based on a statute, it does not violate the cause. >> if the federal executive tried to imprison you based on your religion, you could take issue with that and say is an establishment clause violation. >> i do not think you need the

establishment clause for that. >> if you are not part of our religion and we are in prison in new, i would think you could bring that claim. bringing it back to the case in front of you, i think there is no reason to think that ordinary principles of standing would not give my client every ability to challenge the constitutionality of the statute under which she is being held. >> are you making any claims other than that congress was acting outside its powers in enacting this statute? are there any peculiarly 10th amendment claims that you are making? you admit congress is acting within its powers and yet the violent -- act violates the 10th amendment. are you making claims of that sort? are all your claims that the statute goes beyond congress's ability to enact it under article one? >> the principal argument is an

enumerated powers argument. i am not sure i understand some clearly defined 10th amendment claims that are not enumerated power. >> let's say even though congress might have the ability to enact a statute under article one, there is an independent 10th amendment limitation. do you have any claims of that kind in this case? >> i do not think so. take the printz case. it went out of its way to say it was an enumerated power case. the majority opinion says this is not separated from enumerated powers. >> let's assume that there is such a thing as a claim where you say is within article one powers but there is a 10th amendment limitation on this. do you have any claims like that? >> i do not want to bet my case

on remand that i will not say something in making an argument that the government thinks is too much of a commandeering claim and not enough of an enumerated power claim. >that is the basis of our claim. >> you are at no risk if the court limited it on article one section 8. if there is a difference for commandeering claim, when the case arises, we can deal with it. >> you could certainly do that. as long as it is crystal clear that there will be no obstacle to my client making a constitutional attack on section 229 on remand, that is fair enough for my client. one of the arguments we've preserved is that it is not a blank check for the government. it requires a balancing of the

state's interest against the federal interest. if on remand i wax eloquent and about the state interest, i would hate for a trap door to open up and be told it is too much of the state's interest. >> you want us to say that when there is a specific injury specific 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 those powers are limited to protect the liberties of the individual. >> that is right. that is the fundamental worry i have. the court cases have not drawn a distinction between commandeering claims and enumerated power claims. both go out of their way to say if they are mirror images or enumerated power claims. the law that commandeers is not necessarily proper.

i think part of the problem with the suggestion that somehow tennessee electric should be re- imagine as a third party standing claim is that it fundamentally miss comprehensive who the claims of the constitution are there for. they're there. to reduce their there to protect citizens. there was a case where the executive was complaining about the infringement on executive power. the executive branch defended it in this court. it was a disgruntled accounting firm allowed to vindicate the separation of powers. >> can there be some 10th amendment claims that go just to state prerogatives and not the rights of individuals? let's say there is a statute that regulates where a state locates its capital or the contents of the state flag. would that go just to state prerogatives and not individual rights? >> i think it would.

my point is that we should just apply the normal rules. i do not think is sustainable that the proposition in commandeering claims that the individual will never have standing. imagine a statute that purported to save money by commandeering local prosecutors to prosecute federal crimes. i would hope the defendant would be able to raise a commandeering argument as a defense. it would be like if congress tried to commandeer the comptroller general to bring criminal prosecutions. >> if you were not making a commandeering claim, we would be going out of our way to decide that. are you making a commandeering claim? >> i do not self identify as making a commandeering claim. [laughter] i think it is the government asking you to go out of your way to re- imagine tennessee

electric as a different kind of case to preserve. >> if you are just making a treaty power claim, however you going to win on remand in the third circuit if we reverse? if your client has standing, does fall within the prerogatives of the court of appeals to say that missouri versus holland was wrong? >> this is a technical matter. we could go back to the third circuit and still have standing to make an argument on precedent. i think is a mistake to think that is some bright line rule that forever answers the question. as i read it and as we clearly argued before the third circuit, it is not a blank check. it is more of a balancing test that looks at the state and federal interest in assessing whether or not the statute that implements the treaty is necessary and proper. i think this case compares favorably. the state interest there was week.

there was no real state interest. in this case, the state has a legitimate interest in law enforcement. i also think we ought to make -- >> does that depend on the nature of the chemical involved? suppose the chemical was something people would normally understand as the kind of chemical used in a chemical weapon? let's say it's sarin? does it matter that this case does not involve something like that? >> i think it would matter in part for a constitutional avoidance statutory argument. i think that she also be open to us. i think of the jones case where this court said that a federal statute about arson does not apply when a cousin throws a molotov cocktail at eight house. we were just talking standing. >> we're not asking you to do

more than standing. it is important to understand we do not think we would be limited to losing and coming back up. we think we have a good argument on holland as applied. we also think there is a statutory construction argument. there's something odd about the government's theory that says i can buy a chemical weapon at amazon.com. that seems to be the kind of thing we could make a statutory construction argument to say that the actual chemical weapons are one thing but with respect to the commonly available chemical, to say without any jurisdictional element that is a federal crime seems like it ought to have standing. >> the strongest point against you is a single sentence in the tba case. is in the opinion. i think it is saying that

congress has not violated some rule against creating a system of regulation in the statute because it is not regulation. but then he says that even if it were, and if your complaint was that congress has acted outside its authority, in creating a system that competes with local systems the appellants would have no standing in the suit to raise the question. that is what it says. presupposed to say that was an ill-considered decision? are we supposed to say it was wrong? are we supposed to say the law has changed? what is different? what are we supposed to say? >> i want to see two things

about the sentence. the first thing is that i do not think it iactually means the court is trying to impose a special disability on 10th amendment claims. the already rejected the plaintiff's basis for having standing. >> it comes out of left field and is an overall either if. >> and think it stands for the proposition that rejects the argument that if you do not otherwise have standing under the rule of the day, if you have a special license to bring a 10th amendment claim. if so, it is right in continues to be right. if you read the sentence, it makes a reference to what was established a few paragraphs earlier. the states have passed laws to accommodate the power.

"if thises on to say, were not so." we would then have a different question and would not be standing. i think it can be disregarded. you should do what you did in twombley. just say is no longer block. the central holding of tennessee electric was overruled 40 years ago in the camp case. i think this is from the legal wrong test of standing. i think the court should make it clear it does not apply any longer. it would free up the lower courts to decide these 10th amendment standing claims. and is based on an application of normal standing principles.

that is not happening in the lower court right now. someone comes in with the 10th amendment claim. they are confronted with a quick citation of tennessee electric and shearson. no standing analysis or anything subtle. that is not sustainable. and give back the remainder of my time. >> as the petitioner confirmed this morning, the potential claim he is making about the unconstitutionality is fed exceeds congress's enumerated powers. he may wish to waive an argument that it invades the province that belongs to the state

involving criminal law. he can do that. he has the authority to make a challenge. the third circuit relied on this court's decision in tennessee electric. we think the court of appeals misread the case in concluding standing. it is not because it lacked the holding of certain types of claims that allege an invasion of state sovereignty but because the kind of claim the petitioner is making is not a 10th amendment reserved rights claim, but instead an enumerated powers claim. >> it is hard to draw that precise line in enumerated powers and the 10th amendment. it seems a bit much to put the defendant to the trouble of trying to do that. that is under the theory from

tba that they have no standing to make that particular 10th amendment claim. >> the kind of claim he is making on her behalf does assert her right not to be subject to criminal punishment under a law that he says congress lacks the authority to enact. >> what if she argues on remand that congress can enact any lonaw necessary and proper to implement a treaty? the 10th amendment prohibits certain laws that intrude heavily on state law enforcement prerogatives and state police power. which category does that fall into? >> it falls into the enumerated powers category.

one of the elements this court looked at when it decided whether the law authorizing civil commitment in that case was within congress's enumerated authority -- the court looked at the extent to which the law accommodated state interests or invaded them in an unlawful manner. that is what mr. comstock alleged in the case. >> even if the defendant in some case might show a constitutional violation is causing that defendant specific injury, the defendant may not be able to raise the claim if it is a sovereignty claim. in thornton versus arkansas, the term limits case, we allowed a

citizen of a state to bring a challenge to a statute that the state had enacted inconsistent with its federal powers. it seems to me that is inconsistent with the position you are taking. it seems to also be inconsistent with the rule of separation of powers claims presented by defendants. the whole point of separation of powers and federalism is that it inheres to the individual and his or her right to liberty. if that is infringed by a criminal conviction or in any of the way that causes specific injury, why can it not be raised. i just do not understand your point.

>> i do not take issue with everything he said. the structural issues can be enforced under the cases you have cited. we are dealing with two things. it is a statement that this court made addressed to what the court perceived as an attack based on a specific aspect of state sovereignty that belonged to the states. today, we might not understand the claim made in the case as 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 do not know if that is a fair assessment of the argument made in the tennessee case. i am looking at the brief in the case. the discussion of the 10th amendment generally follows a caption that says the power to dispose of federal property does not preclude any power to

regulate local activities. i do not understand why that is not the same delegated powers argument that you say the petitioner here is raising. >> i think it is difficult to parse precisely what the petitioner in tennessee electric was arguing. this court understood the claim as one that bore on federal regulation in purely local matters in matters that regulated the internal matters of state. i agree that today we may not view that as a 10th amendment specific claim. this court did in 1939. >> why not consider it as outside the commerce clause? what is the distinction between saying as they did then that the tva regulates electricity rates

in memphis. that is beyond our congress to enact. the 10th amendment and a lot of other things. it seems to be saying beyond the power of congress to enact. jurisprudence,s that is how the case would be viewed. that is not how it was viewed at the time. >> how do we know that? >> the language from the sentence that you read discussing whether the presence or absence of the state objection mattered, the court said there was no objection from the state. if this was not so, the appellant has no standing to raise any objection under the amendment. >> let's assume in this hypothetical that the federal government sets the price. someone is accused of violating

the price. in that defendant come in and say it is unconstitutional because prices have to be set by the state? can the defendant say that in the commandeering claim? >> that is the kind of claim today we would concelebrate -- conceptualize as an enumerated powers claim. >> give me a hypothetical of a defendant where it would be a pure anti-commandeering claim that you say they have a standing for. >> imagine back to justice kennedy's question. i wanted to answer the part that i thought distinguished a commandeering case from what justice kennedy was talking about. the point is best made in the context of an example. under the sex offender registration act, defendants have challenged law on numerous

grounds including that congress lacks its constitutional authority under the commerce clause and necessary and proper clause to individualize the individual registration requirement imposed on them. all courts have addressed and said that as a claim with in the rights of a defendant to bring. they've also said that the statute violates federal law because it requires states to except sex offender registrations. it commandeers the states into requiring them to set up a sex offender data base. >> why should not the defendant be able to raise the argument? presumably, the statute is invalidated and the conviction is overthrown. why does the defendant not have the appropriate interest to raise the argument? >> this is the crucial point

that distinguishes commandeering from most constitutional provisions we have been discussing. a state can choose to establish a sex offender data base and receive registrations from people required to register under federal law. in validating a federal law that commanded them to do that does not deprive the state of its ability to say that we want to have in our sovereign interest in sex offender data base that will receive these applications. >> all you are saying is that there is no violation. >> that is correct. >> the reason why in that hypothetical the defendant should not raise the issue is because there will be no violation. >> that is a merits question and not a standing question. why not just say that he would lose? >> you could say that.

i think part of the enduring force is that it adopted a third-party standing rule that is still part of this court's jurisprudence. >> why could you have not said the same thing with tva? they might have decided to charge that on their own and therefore you have no standing. >> the court did say there was no standing on the ground that when the specific argument was made, this takes away the right of the state to regulate. the federal government is regulating. >> is there concern there would be a pass in these cases? you have given the example of the offender registration system. suppose the defendant can raise that and would prevail.

the state is not party to the suit. its interests have not been represented. >> that is a major factor in third-party genestanding in general. >> suppose the state wanted to be commandeered? they said they really wanted to have sheriffs take federal gun registration law? but they can do that. >> i have serious trouble with that. >> a state can confer more authority on the federal government than the constitution? >> no, but a state in its sovereign decisionmaking process can elect to participate in a federal program. that is what justice o'connor said in printz. >> why is the standing document not able to give you the protection you are looking

after if you cannot tell if the state did it because it was compelled to or because it wanted to? there was no causation. you do not have standing. >> that is a perfectly acceptable route of analysis. >> i would rather use that than inventing the new one -- than using the new one you are putting upon us. >let's use the one we already have and not have to get into developing one i have never heard of before. >> i think all the government is doing in this case is applying conventional standing principles of redressability and third- party standing in the context that is not before the court today. this is not a commandeering case. that happens to be the only specific aspect of a state sovereignty claim distinct from an enumerated powers claim that

the court has recognized in recent decades. whether some other sort of claim of state sovereignty may be recognized and require its own analysis is well beyond the scope of this case. our point is more basic. we agree with the petitioner's counsel that he can raise the claim that he has tried to raise. we think the third circuit misunderstood what the tva purported to say when it rejected standing for a type of state sovereignty claim. we think the currently recognized state sovereignty claim of commandeering fits the description of the analytical category addressed in tva. >> is it different because this is a treaty power claim? your briefs go back and forth on which one it is. your briefs emphasizes commerce clause power. your main brief said this was a

treaty provision challenge. >> i believe the statute is valid under either the treaty clause plus the necessary and proper clause under holland. it can also be sustained and the commerce clause that follows directly from what this court said when it said that the intra-state regulation of a commodity is a customary typical method that congress utilizes. he gave examples of that. the nuclear, biological statutes enacted to implement treaty obligations for the united states. >> given the breadth of the statute, that would be a far- reaching decision. suppose the petitioner decided to retaliate against her former friend by pouring a bottle of vinegar into her friend's goldfish bowl? as i read this statute, that

would be a violation of the statute potentially punishable by life imprisonment. >> i am not sure. i will assume with you in it is. >> if she possesses a chemical weapon -- a chemical weapon includes toxic chemicals. a toxic chemical can cause death to animals. pouring vinegar in a goldfish bowl will cause the death of a goldfish. that is a chemical weapon. >> i am willing to make the assumption with you and accept is a broad reaching statute. it was adopted as a broad reaching statute because this is an area like the medical marijuana case where effective control of the intra-state market requires control of an intrastate market. the peaceful uses for agricultural and pharmaceutical purposes of the chemicals, it has other exemptions as well.

it was intended to be a comprehensive ban that implemented the u.s. treaty obligations to eliminate the use of chemical weapons in military instances and terrorism. >> that case involved one commodity, marijuana. this case involves potentially thousands of chemicals. you would make the same argument with respect to every one of those chemicals if you take together all the people who use vinegar to kill goldfish or all the people who might use antifreeze to kill dogs. you put all of that together and has substantial effect on the interstate market for antifreeze or vinegar. >> that would be the argument. i think it is well-recognized that when congress seeks to regulate an interstate market, it can control the intra-estate

market as necessary to ensure the prohibition is effective. >> taking vinegar of the interstate market, do the people know you are doing this? [laughter] is this statute designed to drive vinegar out of the interstate market? >> are we getting into the merits of the case [laughter] >> the merits of the case involved the common cause argument, the treaty-based argument. as far as standing principles, i do not think there is any difference between them. missouri versus holland was the case where the court adjudicated whether it exceeded congress's authority. it did that at the behest of the state. there is no reason why in other cases that an enumerated powers argument is off limits to a criminal defendant. this case does go back down to the third circuit.

a petitioner can make the argument that this law exceeds the enumerated powers. we can rely on the treaty clause. it does not affect standing. amicus makes thea' assumption that because tennessee is good law, there is no assumption it would assist -- exceed congress's authority. therefore, this must be a special state sovereignty claim that looks like commandeering, perhaps not articulated like that. i think the petitioner confirmed today that does not wish use trying to do. there is no 10th amendment claim based on a specific aspect of state sovereignty that the petitioner has ever made. if you look at the petitioner's brief, the petitioner said the 10th amendment argument raised by bond was not critical to the

other constitutional challenges. it is ancillary to the main argument that congress acted outside of its enumerated powers. i think that is a correct understanding of what the petitioner has sought to argue in the court below. she is entitled to make the argument. the argument should fail on the merits. that is not an issue for this court to decide. >> you said commandeering. but you said there could conceivably be others. is there anything concrete other than commandeering that might fall under this state sovereignty side of the line? >> the court has indicated that moving a state capital might be an improved -- intrusion on sovereignty. >> what about the defense in a criminal case? >> highly unlikely.

>> thank you. mr. mcallister? >> thank you. may it please the court. the relevant standing doctrine is the prudential rule against third-party standing. no one disputes his petitioner has article 3 standing. one of the difficulties in the case is that the only case that mentions standing in this context is the tennessee valley authority case. it clearly says if it is a 10th amendment claim, unless you have a state official or state, there is no standing. >> that is pretty harsh if we're talking about prudential standing to deny that to a criminal petitioner. >> it is harsh, but other courts have done it. there are other cases where a a defendant has made a 10th amendment case and the court has

said no. you can characterize it as an article one enumerated powers claims. this court has assumed many times. there are cases that say no standing for a criminal. she did make a fifth amendment challenge. if she had other bill of rights claims, you could raise that kind of claim. the court cases do distinguish between 10th amendment and other claims. the argument is what is on the 10th amendment side and what is the lack of power. i would point to the heller case mentioned in her brief. the court says there are three times in the constitution where the words "the people" are not talking about individual rights.

the preamble, article one section 2, and the 10th amendment. these are about reservations of power and not rights. the printz case says there is something substantive about the 10th amendment that is separate and apart from article 1, section 8. >> there is a lot of discussion about labels and what they mean in this case. tell me specifically no specific ways in which prudential considerations bar her standing. what about the nature of her claims should counsel us against giving her standing? >> there are a couple of things. one is the usual rule of prudential third-party standing considers the alignment or lack

of alignment between the third party making the claim and the party whose claim it really is. in this case, there is no argument that her interests align with those of the commonwealth of pennsylvania. the commonwealth prosecuted her. it did not stop her. he was unsuccessful as a deterrent. the federal government later got involved. >> do you think pennsylvania would be upset if the federal government got her when they could not? >> no, her interests are directly contrary to pennsylvania's. >> in another case conceivably, the state attorney general could exercise his or her prosecutorial discretion not to prosecute her under the anti- terrorism law that gives her 8 years.

is that something for the state to be concerned about? we want to have the discretion to prosecute or not for standard crimes that have no relation to interstate commerce or other federal power. >> it is standard that both sovereigns have the ability to prosecute. that is if the definition of the crimes overlap. there's nothing that prevents pennsylvania from prosecuting her. >> she wants to make the argument that this is a strictly state, local crime in any attempt by the federal government to convert it into a treaty based terrorism crime is erroneous. that is what she is trying to do. why does she not have standing to make the argument? >> the lower courts understood this to be a 10th amendment claim. there are reasons for that. in this case, neither the court

nor the petitioner wants to talk about that. if you look at the joint appendix pages 26 to 32, there is the supplemental brief that her lawyer filed in the third circuit. it said maybe this is a 10th amendment case and we have a standing issue. the government said they did not think she had standing. she did not come back and answer she was not making a 10th amendment claim. her answer was she was making the claim and have standing to make it. >> that single sentence does not seem to refer to all 10th amendment claims. there is a footnote that talks about no standing in this suit. if you look back at the lower court case, it seemed to be referring to a particular argument where the property clause does not give authority.

the reply was it was true in alabama. the court said it was okay. the challenger says that alabama agreed. then georgia does not agree. it was in that context that georgia said it does not make any difference. if georgia was going to agree or disagree, you had better have georgia say whether they disagree or agree. that is what he seems to be saying to me at the moment. what is comparable to that in this case? is there some claim she is making that it would be constitutional if they agree in the state? >> she is arguing a lack of power. ?rachow can we take this >> if we're talking about the sentence in tva barring

standing in 10th amendment claims -- it is hard to tell exactly what this case was. it is a rather confusing place. >> you read the page and get an idea. >> the language of tva is not limited to that particular interest. it says it is the 10th amendment claim and there is no standing. for 70 years, the lower courts have wrestled with what the 10th amendment claim is. if it is a 10th amendment claim, there is no standing. in terms of the third-party prudential aspect, the issue is whether this is a good person to assert someone else's interests. she has article 3 standing but not necessarily to make every

constitutional claim one might think of. in the 10th amendment concept, those claims belong to the state. there is good reason to think the states do get involved when they perceive 10th amendment violations. >> could you articulate the nature of her claim, taking the labels away? do you think is a. 10th amendment challenge? -- do you think it is a 10th amendment challenge? >> i read that it is a 10th amendment challenge because congress has exceeded its powers. >> her argument is that unless the statute is authorized by article 1, there is no power to enact it. that is why this case is not clearly governed by lopez or

morris. those were straight commerce power cases under section 3. this is a treaty power case under article 2. she only wants to read the first half of the necessary and proper clause. >> you have not answered my question. why is that not a merits decision as to whether or not the president and congress have the power to enact this legislation? >> at the end of the day, it will be a merits question. from a standing argument, trying to define what is the 10th amendment claim, the point i was trying to make is that she is not saying -- she is sort of saying that the enumerated powers are the limits but cannot be the limits in light of the plain language of the necessary

and proper clause and 90 years of precedent under treaty power. those powers are not limited. she is saying she is making an article one claim. that lets her always have standing. even in the commandeering cases, the plaintiff can say this is about article 1 and not the 10th amendment. at some point, the court has to drill down and characterize the nature of the claim. >> why do we have to do that? it seems we have had a lot of discussion about whether this is an enumerated powers or 10th amendment claim. they do blend together. it seems difficult to put on a criminal defendant the responsibility to decide whether this is going to be an enumerated powers or 10th amendment claim. the basic principles do merge together. why does it make that much of a difference? why put the burden on the defendant to parse the claim one where the other? i assume they could make the

same arguments under the enumerated powers clause. >> in an enumerated powers case, yes. the difficulty with this case is it is unusual. the government had not relied on the commerce clause. the government said throughout that this is a treaty power case. even in the third circuit, the judge said it would be easiest to decide on the treaty clause. i agree in a lopez kind of case that if the commerce power does not go that far, it is reserved under the 10th amendment. here is a treaty power case. >> >> i guess i do not understand why that makes a difference. the necessary and proper clause

says foregoing and other powers. this is where congress is acting under the other powers of the cause. the question is the extent of the necessary and proper clause and what it allows congress to do. in that case whether it is a treaty powers case or not does not matter. it is a question of the scope of authority of congress under the necessary and proper clause. >> i respectfully disagree. her argument is that she is not arguing the statute is irrational or unreasonable to implement the treaty obligations of united states. she is arguing that the treaty power itself does not give congress the power to enact section 229. you already have the power of the government and the first 17 clauses. the necessary and proper clause is the connection to article 1, but it is a minimal connection.

she is not arguing that this is not tied to some sort of articulated power. the government clearly has power to enter treaties under article two. that is the distinguishing feature from all of the other cases. i do not think i could stand up here and try to argue for you that this is a true 10th amendment case if this had been litigated as a commerce power case all along. >> are you saying she is arguing that congress does not have the power to enact legislation necessary and proper for the implementation of treaties but only for the making of treaties? she is making the argument made by some academic writers? >> i am not sure that is what i meant to say. i was trying to say that her argument is a challenge to the

treaty powers. it is one step removed. she says the statute has to be based on something in article one, the first 17 clauses. the treaty power adds nothing to enact legislation. that is -- under her view of the law as i understand it, you do not need a treaty. the treaty does not add anything. it may be the reason congress decides to enact section 229. if it has the commerce power to do it, the united states never needed to enter a treaty for congress to enact 229. as i understand her argument,

the treaty power adds nothing to the domestic legislative authority of congress. >> have you found any other case other than this one where a criminal defendant have lacked standing to challenge the statute under which it was prosecuted? >> not in this court, but there are examples in the circuits involving criminal prosecutions where the court characterized the claim as a 10th amendment claim and said the criminal defendant does not have standing to make the claim. there are examples in the lower courts. there is some argument about the separation of powers cases where the court has typically allowed individuals to make that claim. we're talking about prudential rules and third-party standing,

one prudential consideration is that in those cases, the federal government is always very much present. it may be representing the defendant. it may simply intervene or come in as an amicus. the difference in the 10th amendment setting is there is no mechanism to notify the states for their interest. someone is raising this claim that says the government is intruding on your sovereign interest. there is no mechanism to allow the states. if the states are allowed a bit, perhaps they will be allowed to. >> is that an issue for a civil lawsuit as opposed to a criminal one? all the would happen in a criminal suit is that the conviction would be undone. that does not mean the state is bound in some way. the state was not a party to the criminal action. >> the state is not a party.

but what gets said in those cases about the scope of the state prerogatives and federal government could be brought to bear in other cases and settings for commandeering cases. the concern in the third-party standing case is that you are not actually a party. someone else is making arguments on your behalf. they may lose because they do not know all the arguments they should be making or do not articulate them the way the state does. there are factors affecting the decisions. >>. two things that could happen. if the state loses and does not want to lose or if it wins, it lets the status quo go. i do not understand what the long-term interest of the state is. >> the long-term interest is a decision saying the criminal

case does not intrude on the state's sovereignty. if later at the state wants to case doesis particular stat intrude, they will confront contrary precedent that the state did not have a chance to address its views at the time. >> your underlying premise is that the individual has no interest in whether or not the state has surrendered its powers to the federal government. i just do not think the constitution was framed on that theory. >> i do not know if i would say they have no interest. i am asserting that they do not necessarily get to assert the 10th amendment claim of the states. in new york versus united states, they said there were not concerned and then changed their mind.

if states cannot waive the 10th amendment rights come that they can change their mind and bring a suit. justice kennedy said the reason is in the constitution is only for the benefit of the state and not for the benefit of the people in the state. if the state chooses to give it away, the individual has no standing. you say in his third party's raising the states' rights. the other sides is arguing this is not a right of the state. it is the right of the individual to have the state take charge of certain matters and the federal government take charge of other matters. i not see how it is different from article 1, section 8 claim. >> that is a conclusion the court can reach. the petitioners position is that there is never a question of third-party standing for any claim under the constitution and that no claims are limited to

certain categories. >> there is a question of causality. some will not be valid because you cannot show that the state was coerced into doing something. therefore, you cannot show the violation of the constitution because. >> you are talking about causality. that is an article 3. i am trying to talk about the next step of prudential third- party standing. that is out the window whether it's separation of powers or 10th amendment. >> mr. clement, you have four minutes remaining. >> one reason not to carve out a special rules for commandeering claims is that not all commandeering claims are created equal. mr. dreeben raises the claim that has been litigated in the sex offender act. i do not know the details enough to know if that is a valid

commandeering claim or not. i can imagine a commandeering case, a federal statute that purports to commandeer local prosecutors to prosecute federal crimes. the lower courts are not resolving the standing issue in the sorna challenges. they are resolving the challenges with a simple citation of tennessee electric and moving on. that should stop. a second reason you should not try to carve out commandeering cases as being the residual of the tennessee electric dictum is because tennessee electric is not about commandeering cases. it talks broadly about 10th amendment claims. we can disagree or agree. it is hard to figure out what the nature of the claim was in tennessee electric. i do not think it was much different from the claim we're raising. tennessee electric said the

federal government gets to regulate power and let the states regulate the price of power. hear, the federal government can prosecute you for putting vinegar in your neighbor's goldfish bowl. i think they are similar arguments. i do not think tennessee electric limited itself to commandeering claims. mr. dreeben refers to the enduring force of tennessee electric. i do not think it has enduring force. the further you go in the decision, the less satisfying it is. if you go on to reading the georgia power case and look at the role of consent of the states, in the district court opinion, that is in the merits section of the opinion. the courts held contrary to tennessee electric that the utility company had standing. you hopelessly conflate the merits and standing question.

that kind of happened today in oral argument. that is a bad approach. it should perfect the camp decision by saying this sentence the longer survives. on the commerce clause, i think justice alito shows why the court is right not to make the argument below. it does not reinject the commerce argument in a way that does not allow us to argue it was clearly waived in the third circuit. we have a better argument to defend the statute. claim error should be a two-way street. asian not be allowed to sneak the commerce clause back into the case. -- they should not be allowed to sneak the commerce clause back into the case this late. when the court wants to cite cases for the proposition that the executive branch cannot waive the separation of powers violation, the separation of

powers are there to protect the individual. it cites new york versus united states. please reverse. >> mr. mcallister, this court appointed you to argue the case.