In the current issue of the Harvard Law Review Forum, Alison LaCroix (University of Chicago Law School) has the article Redeeming Bond? (128 Harv. L. Rev. F. 31 (Nov. 2014)) (responding to Heather K. Gerken, The Supreme Court, 2013 Term — Comment: Slipping the Bonds of Federalism, 128 Harv L. Rev. 85, 90 (2014)).
From the introduction:
Professor Heather Gerken subjects the Supreme Court’s decision in Bond v. United States to a range of pointed and well-deserved criticisms. In particular, she notes the circularity of Chief Justice Roberts’s statutory analysis, writing that “the Court thought the statute was ambiguous . . . [b]ecause it had to be.” Gerken also characterizes Bond as a return to what she terms a “relational” theory of federalism, according to which the analysis begins with the power of the states. She contrasts this approach with what she suggests is the only other alternative offered by the Rehnquist and Roberts Courts: an analysis that “defines federal power in isolation.” This federal power–driven approach “start[s] with Congress and attempt[s] to delineate the bounds of its power without reference to the states.” In the return to the relational account, Gerken finds something to praise in Bond (although she notes that the Court “takes the wrong path to get there” by focusing on state sovereignty, a concept she believes has become “a camp- fire story”). A federalism analysis that starts with the states is clear, and it avoids the problem of “how to bound the boundless.” In the end, then, Gerken endorses Bond as a demonstration that “[b]ad theory can make good law or at least halfway decent doctrine” that is “reasonably manageable and coherent.”
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In my view, Bond works a significant change in the federalism case law, but not precisely in the direction that Gerken suggests. Gerken frames Bond as a crisis averted for more nationalistically inclined champions of federalism, and as a salutary opportunity to rethink how a state-focused analysis might be applied to federalism cases. But although Bond initially appears to depend on the relationship between the state side of the federalism analysis and the congressional side, it ultimately turns out to be much more about a judicially defined hierarchy of congressional powers. And while the Court labors to conceal behind a scrim of statutory interpretation its sweeping structural and supra-textual account of why the Chemical Weapons Convention Implementation Act of 1998 does not reach Carol Anne Bond’s conduct, it continues its quiet transformation of federalism doctrine.
Posted at 6:42 AM