Professor Heather Gerken subjects the Supreme Court’s decision in Bond v. United States to a range of pointed and well-deserved criticisms (134 S. Ct. 2077). 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 campfire 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.

What Gerken praises the Court for, however, I would argue is a pervasive, and now deepening, problem in recent federalism doctrine. The “clear statement” rule of Bond — which, given that it breaks down in the pages of the Court’s muddled ambiguity analysis, Gerken rightly treats as existing only in the Court’s description of what it is doing — appears to be a rule directing that federalism analysis begin with a search for, and measurement of, the essential localness of the particular activity to be regulated. Unless the relational, state-focused account is premised on a substantive commitment to state sovereignty itself, however — a view that Gerken clearly does not embrace, as she terms it “mostly claptrap” — it is not clear why the relational account is a clearer statement than an Article I–focused approach would be. By itself, the state-focused approach provides no additional analytical clarity unless it is accompanied by a prior determination of which side should win in a contest between federal and state power.

If we follow Gerken, however, and disclaim a normative preference for strong state sovereignty, we might equally well begin the federalism investigation by looking to congressional power. Starting with Congress’s Article I power does not mean that federal authority is limitless, any more than starting with the states’ power means that state authority will always prevail. So, if the state-focused approach to answering federalism questions is not clear, and if one does not endorse a substantive position of strong state sovereignty, what in the end does Bond contribute to the doctrine on federalism?

Read more at Harvard Law Review Forum