Slipping the Bonds of Federalism

By Gerken, Heather K. | Harvard Law Review, November 2014 | Go to article overview

Slipping the Bonds of Federalism


Gerken, Heather K., Harvard Law Review


There are three tales told about federalism, but only one of them is true. The first is the nationalist's tale. It depicts federalism doctrine as Shakespearean comedy. Always fanciful, sometimes silly, the story supplies moments of consternation and doubt. But the villain turns out to be mostly harmless and easily outwitted. All's well that ends well. The second is the tale told by those who believe in state sovereignty--an epic story of heroes depicting battles against impossible odds and often ending, as did Beowulf, with death and loss. The third story, and the true one, is a tragedy--or at least a tale of tragic choices. It is a story of the failure of craft, of law's best principles bumping up against doctrine's worst frailties, of the conflicting obligations we place on judges. That is the real story of "Our Federalism." (1)

While the "curious case" (2) of Bond v. United States (3) (Bond) ended up being one of the less important chapters of this Term, it folds easily into each of these storylines. That's because it is a stand-in for much of what's wrong with federalism doctrine, and it should be a signal to us all that, no matter which tale we prefer, it's time for a new narrative. The question isn't how Bond's two opinions will shape future federalism doctrine. The question is whether we can slip federalism's many Bonds and start anew.

If you believe that law is a craft, as I argue in Part I, you are likely to believe two things about federalism doctrine. The first is that the federal government is a government of limited powers. The second is that the Court has never figured out how to limit federal power without violating the rules of craft (4) that prompted it to enforce those limits in the first place. As a result, judges are put to a tragic choice in federalism cases: do nothing to limit federal power or do something ... silly. And now, almost two decades into the so-called "new federalism," the Court has rendered a decision in Bond that manages to do both. Sadly, Bond isn't the only evidence that the Court has reached a dead end in federalism doctrine; it's merely the latest.

Every revolution sows the seeds of its own destruction, (5) and so it is with the Court's federalism revolution. Certainly the current mess can be traced back to the mistakes of the Rehnquist and Roberts Courts. After spending decades leaving federalism battles to politics, the Justices have tried to extricate themselves from the political thicket only to back themselves into a legal thicket instead. They've chosen a path that has led courts into the tangled underbrush of lawyers' tricks and logicians' games. It is admirable that the Justices have tried to do something to fulfill their constitutional obligations. The problem is that they've done the wrong something.

If we retrace the Supreme Court's path, however, we can imagine a new, better course. That's because, as I explain in Part II, the Rehnquist and Roberts Courts have offered us two kinds of federalism decisions. Some start with the states. They mark where Congress's power ends by identifying where state power begins, using sovereignty as a touchstone. Others--including most of the decisions of the Roberts Court--start with Congress and attempt to delineate the bounds of its power without reference to the states.

While it is conventional to note that federalism cases come in these two flavors, the mistake we make is to treat both lines of doctrine as if they are equally flawed. They are not. The cases that rely on state sovereignty to limit federal power are misguided, but we should give the devil his due. These decisions have managed to generate doctrine that is more manageable, more comprehensible, and therefore more likely to endure. (6) The cases that define federal power in isolation have been a failure on almost any measure. Because they attempt to identify limits through sheer force of logic, the doctrine they generate amounts to little more than logic games, which can be played by both sides of any issue. …

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