A Fickle Federalism

The revival of a doctrine of federalism that constrains the power of Congress has been a signature feature of the work of the Rehnquist Court. The Court's five-justice conservative majority has repeatedly held that the preservation of states' rights requires broad new limits on what the national government may do to protect its citizens. Indeed, the Court has invalidated a number of federal laws on these grounds, including part of the Violence Against Women Act, the background-check provision of the Brady Handgun Violence Protection Act and provisions giving individuals the right to sue state governments for violating the Fair Labor Standards Act, the Age Discrimination in Employment Act and the Americans with Disabilities Act.

The Rehnquist Court's jurisprudence in this area has had a strained and curious quality. Although the five conservative justices claim to be strict constructionists, their federalism decisions are not rooted in the text of the Constitution. Nor are they particularly attentive to the values at the core of the federalist model of government: respect for interstate diversity, political experimentation and grass-roots participation. Instead, these decisions are extremely formalistic, taking state power as an end in itself rather than a means for promoting the rights and interests of the people.

At the same time, the broader body of the Court's work displays an inconsistent interest in empowering the states. Most famously in Bush v. Gore but also in a variety of cases challenging state regulation of such things as cigarette advertising and HMOs, most of the justices who in other settings support states' rights have sought to curtail state powers, cut off state initiatives and limit the states' ability to vindicate political rights. Rather than demonstrating a principled commitment to the autonomy of the states, the justices' opinions shift with the context -- leaving the Court open to the charge that, like many politicians, it is using states' rights as a doctrinal rallying cry for other political ends.
The Court's conservative majority has moved along three paths to limit the power of the federal government. First, the Court has been restricting the subjects on which Congress can legislate. Second, it has prohibited Congress from requiring state and local governments to help enforce national laws. And third, it has denied individual citizens the ability to sue states that violate national laws.

The shrinking of Congress' range of action has been startling. For six decades beginning in the 1930s, the Court had held that the Constitution's grant of authority to Congress to regulate "commerce ... among the several states" provided the basis for a wide variety of economic and social legislation. But in 1995, in United States v. Lopez, the Rehnquist Court began to turn that around. Lopez invalidated the Gun-Free School Zones Act of 1990, which had made it a federal crime to possess a firearm within a certain distance of a school. To reach this decision, the five-justice majority asserted the traditional primacy of the states with respect to law enforcement and education -- although the Constitution neither assigns these issues to the states nor places them beyond the scope of national power. The Court majority also claimed that there was no demonstrated connection between guns in schools and economic activity (commerce).

Lopez initially seemed an isolated decision. Many observers assumed that if Congress made a greater effort in the future to show the economic impact of a problem and the need for national legislation to address it, the Court would return to its longstanding acceptance of Congress' authority, under the commerce clause, to act on matters of national importance.

That reading of Lopez, however, was exploded in 2000 in United States v. Morrison, when the Court invalidated the part of the Violence Against Women Act that provided a federal civil remedy for victims of gender-motivated violence. Before passing this law, Congress held hearings and made extensive findings concerning the economic costs of gender-based violence and the history of state inaction that made it necessary for the federal government to do something. The five-justice majority, however, ruled that even though gender violence actually affects commerce, it is essentially a noncommercial concern and, thus, beyond Congress' power to regulate. The line Morrison attempts to draw between commercial and noncommercial concerns recalls the Court's fruitless struggle nearly a century ago to limit the reach of the commerce clause by creating a standard that would distinguish interstate from intrastate economic activity. The commercial-noncommercial distinction is inherently just as murky, subjective and open to manipulation. Moreover, many noncommercial matters -- civil rights, protection of endangered species, education, criminal law -- have implications for the entire country, which Congress needs to be able to address.

The potential threat to environmental regulation was underscored in a 2001 case in which the Court narrowed the range of "navigable waters" protected by the Clean Water Act, thereby allowing a municipal solid-waste disposal site to open without a federal permit. Although this case turned on statutory interpretation rather than the Constitution, Chief Justice William Rehnquist, writing for the majority, emphasized that the case involved "the outer limits of Congress' power," hinting that there may be constitutional limits on the federal government's authority to protect the environment.

The Court's second line of federalism cases rests on its determination that the 10th Amendment prohibits the federal government from requiring states and local governments to help implement federal programs. In fact, the 10th Amendment says little more than that powers not granted to the federal government or denied to the states are reserved to the states. But the Court interpreted this as invalidating part of the Brady bill. In 1997, without questioning Congress' power to regulate gun purchases, the Court held that the provision of the Brady act that required local law-enforcement officers to conduct background checks on prospective gun buyers unconstitutionally "commandeered" administrative support.

The five justices who advanced the so-called anti-commandeering doctrine contend that federalism would be better served, and the states' interests better protected, if the national government were to take over a field -- that is, create a new federal bureaucracy and entirely displace state laws and officers -- rather than rely on local officials to enforce its rules. But nothing in the text of the Constitution requires this. Nor is such a policy necessary to protect the autonomy of the states in a federal system. The European Union, in fact, has reached exactly the opposite conclusion, deciding that its member states are best served if the federal government is required to turn to them to carry out its policies. It is difficult to see how states here would be better protected by a rule that could lead, for example, to the creation of a national police force responsible for local law enforcement.

The Court's third federalism initiative -- its dramatic expansion of the states' "sovereign immunity" from citizen lawsuits -- is the most at odds with traditional notions of federalism as a mechanism for promoting liberty by diffusing power. These cases grow out of the 11th Amendment, which bars a citizen of one state from suing another state in federal court. More than a century ago, the Supreme Court interpreted this amendment broadly to also apply to citizens suing their own states. In modern times, the scope of the amendment has been sharply contested, with the Court holding that Congress can abrogate state sovereign immunity when it passes laws under the commerce clause or to enforce the due-process and equal-protection provisions of the 14th Amendment. Under those decisions, Congress could authorize individuals to sue a state for damages should the state government violate rights created by federal law.

In 1996, however, the Rehnquist Court, in a 5-to-4 decision, shifted gears and ruled that Congress cannot subject a state to private lawsuits even as part of a legitimate program of domestic regulation under the commerce clause. Since then, the Court has ruled that people cannot sue a state that violates their rights under federal minimum wage laws, laws protecting older and disabled workers, and patent laws.

Indeed, the Court has gone well beyond the 11th Amendment, which speaks only of suits in federal court. In 1999 the Court also barred citizens from suing in state court to enforce federal rights. And in 2002 the Court extended sovereign immunity to a federal administrative proceeding. In that instance, the Court candidly abandoned the idea that the states' immunity is rooted in the text of the Constitution and cited instead the fundamental importance of protecting the states' "dignity."

To be sure, certain individual claims may still be brought against a state. Those based on the 14th Amendment are allowed -- although the Court has narrowed Congress' power to protect 14th Amendment rights. In addition, the Court has held that the states' sovereign immunity does not bar the federal government itself from suing them. But here again, as in the anti-commandeering doctrine, the Court seems to be saying that federalism and state autonomy would be better served by a greater federal intervention than by a lesser. The Court suggests that a massive federal bureaucratic enforcement effort against the states would be preferable to allowing individuals to vindicate their own rights directly. This is entirely inconsistent with the notion of federalism as a curb on big government. Furthermore, in an era of budget deficits, Congress is not likely to dramatically increase the resources given to federal agencies so they can enforce laws that are no longer subject to private enforcement actions. A cynic might say that allowing only federal agencies to enforce these laws is simply a guarantee of underenforcement.

The sovereign immunity cases epitomize the worst of the Court's formalistic federalism. Invoking a doctrine from the era of King George III, these cases lay out a vision of the states as separate from, hostile to and ultimately above their own people. Going well beyond the limited language of the 11th Amendment, they strike at the heart of the American belief that in our democracy, sovereignty is vested in the people, not the government.

Indeed, the Court's federalism cases suggest an indifference to the states' potential to act as democratic, locally accountable policy makers within our federal structure. And this impression is bolstered by other cases in which the Court has given the states short shrift. In the most obvious example -- the Florida 2000 presidential recount -- the Court dramatically intervened in an area traditionally left to the states, rejected the efforts of a state supreme court to provide more vigorous protection of the rights of Florida voters whose ballots had not been tabulated by local ballot-counting machinery, and opened the door to nationalization of election administration. Led by the Rehnquist bloc, the Court twice overturned the state supreme court's actions with little apparent concern about the implications for federalism.

In other settings, too, this group of justices has attached little weight to the value of enabling states to make policy decisions concerning matters important to their citizens. In Lorillard Tobacco v. Reilly, for instance, the Court invalidated Massachusetts regulations that sought to address the problem of youth smoking. Massachusetts had prohibited outdoor cigarette advertising near schools, public parks and playgrounds, and it had required point-of-sale advertising near those places to be more than five feet from the floor (and thus out of the reach of young children). The tobacco industry claimed that the Massachusetts rules were preempted by the federal cigarette labeling law, which requires a surgeon general's warning on cigarette packs and bars additional state regulation of cigarette advertising. Lower courts in this and several other cases had held that the federal law preempted only state regulation of the content and not the location of cigarette advertising. But in an opinion joined only by the five proponents of the new judicial federalism, the Supreme Court agreed with the industry that the limited, ambiguous language of the federal law entirely barred all state initiatives concerning cigarette advertising.

Similarly, in Rush Prudential HMO v. Moran, an HMO claimed that an Illinois law providing for an independent medical review of certain denials of benefits by HMOs was preempted by the Employee Retirement Income Security Act (ERISA), the federal law regulating employee pension and health benefits. ERISA generally displaces state laws regulating employee benefit plans. However, the Illinois law was not at odds with any specific provision of ERISA, which does not address HMOs at all. Moreover, ERISA provides that state laws regulating insurance are exempt from preemption. Nonetheless, the Court divided over the issue. Four of the five justices who support states' rights in the commerce clause, 10th Amendment and sovereign immunity settings concluded that the Illinois HMO law was preempted by ERISA. Though the Illinois law has counterparts in 40 other states, the four dismissed concerns about the impact that such a decision would have on the states' ability to develop policy in an area of vital importance to their residents. Only Justice Sandra Day O'Connor's defection from the bloc saved the Illinois statute.

As the preemption cases indicate, the Court's commitment to federalism is highly erratic. The Court's conservative majority may use a states' rights argument to strike down national actions, but the same justices may also be unsympathetic to state autonomy if it results in new state initiatives. Justice Louis Brandeis famously observed that states can be "laboratories of democracy," experimenting with new policies and providing for grass-roots participation. But you wouldn't know it from the Court's federalism jurisprudence.

Among politicians, the federalism issue does not cut cleanly between liberals and conservatives. Liberals who are normally states' rights skeptics are likely to support state measures regulating HMOs or cigarette advertising. Conservatives who celebrate states' rights will often try to expand federal power and burden the states when it suits their other interests. President Bush, for instance, contends that he is a strong proponent of state autonomy, but the cornerstone of his domestic agenda has been the No Child Left Behind Act, which extends federal regulation deep into the traditionally state-controlled area of primary and secondary education. Similarly, the president's smallpox vaccination program has effectively "commandeered" the resources of state and local public-health offices.

Constitutional law is supposed to be the domain of principle, not politics. But the justices of the Rehnquist bloc have been no more successful than politicians at making a principled commitment to a consistent doctrine of federalism. And the Court's essentially negative approach to the subject reflects little interest in or support for the positive policy-making role the states can play in our federal system.