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Article Title

Bond's Breaches

Abstract

Bond v. United States illustrates a new maxim for today’s Supreme Court: hard cases make no law at all. To be sure, Bond’s bottom line was not particularly difficult. But once the Supreme Court ultimately did take the case, it became hard to decide—at least in terms of the rationale. Although the Justices all favored reversal and dismissal of the indictment, they wound up providing little clarity on the larger questions the case raised.

If, as the more time-honored homily goes, hard cases otherwise make bad law, making little bad law was hardly the worst outcome. Nevertheless, what the Justices proffered was pretty bad. As explained in Part II, Bond’s opinions mused about what they considered a potential constitutional breach: the gap between the national government’s typical authority over domestic matters, on the one hand, and the domestic authority it might assert while implementing treaties, on the other. If tolerated, the basic argument went, such a gap would breach the constitutional commitment to a national government of limited authority. Justice Scalia and Justice Thomas, moreover, voiced concern that the federal government would actively exploit that gap. The problem, on their view, was not merely that treaties, like statutes, might occasionally breach a reserve of state authority; rather, treaties would be differentially exploited by the national government precisely for that reason. Each of the Court’s opinions tried to establish a means by which the judiciary could prevent that from happening.

The real problem was that none of the nine Justices offered any counternarrative. The majority did say that the statute in question was not a sufficiently overt attempt to trench on state prerogatives, but that was cold comfort: Chief Justice Roberts’s exertions at statutory construction had little broader appeal (Justice Scalia, who did nothing to hide his distaste, reasonably doubted that other statutes would be subjected to such “gruesome surgery”), and also offered little hope of aligning the international and domestic authority of the United States. As Part III indicates, the Court should have acknowledged the other forms of breach it was ratifying. The most obvious is the risk of jeopardizing U.S. compliance with its international obligations, contrary to constitutional principles designed to reduce that risk. By focusing on the prospect that the national government will exploit international opportunities to expand its authority—or at best, per the Chief Justice, that Congress legislates with the same attitude toward state and local authority that it always does—the opinions failed to provide the kind of comprehensive account that could guide the political branches and future courts.

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