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COPYRIGHT 2008 Harvard Society for Law and Public Policy, Inc.
I. FEDERALISM: VALUABLE, BUT NOT NECESSARILY JUDICIALLY ENFORCEABLE
Federalism, as distinguished from pure nationalism, is an attempt to create a form of government that has the advantages, at least in part, of both centralization and local autonomy. The advantages of each are obvious. Centralization creates economies of scale; defense and scientific research, for example, can be provided more efficiently and at lower cost by a central government than by several separate governments. Centralization can also solve collective action problems. It allows the country as a whole to achieve a goal like environmental protection that would be prohibitively costly for individual states to pursue unilaterally. Finally, centralization has the advantage of uniformity, reducing conflicts and increasing simplicity and predictability. The disadvantages of centralization, however, are generally the obverse of its advantages. The virtues of uniformity, for example, preclude the virtues of diversity, such as the ability to adjust rules to meet local circumstances. (1)
Local autonomy, on the other hand, provides the great advantage of keeping government close to the individual. Decision making in smaller units means that fewer persons will be frustrated in their policy preferences. In a political unit of 1,000 people, for example, a vote could go 501 for policy A and 499 for policy B. If broken into two units, the vote could go 301 to 199 for A in one unit and 300 to 200 for B in the other, depriving only 399 people rather than 499 of their preference. (2) A likely consequence of smaller political units is that the people will be more involved with their government and that government will be more responsive to the people. A multiplicity of units with free movement by the people among them makes for competition among the units themselves. This in turn can result in a welcome diversity of policy choices among the smaller units, and can also encourage experiments that will eventually lead to policy improvements. (3)
It is clear that, at least in some circumstances, the advantages of decentralized policy making outweigh its costs. That does not mean, however, that federalism can usefully be instituted and maintained as a matter of constitutional law enforceable by courts. Discussions of federalism often focus on the national and state governments being assigned separate "spheres" of power by the Constitution, with each being supreme in its own sphere. The reality, however, is that divided supremacy is an oxymoron. (4) Policy making power is not a physical object that can be divided into non-overlapping parts. Virtually everything in the real world has some connection to or impact upon everything else. The federal government cannot have full power over interstate trade, for example, if the states have full power over intrastate trade, which competes with and otherwise affects interstate trade. The Constitution deals with this problem by providing that when federal and state regulations conflict, as they often and inevitably do, the federal regulation prevails. (5) It is the federal government, therefore, that is the true sovereign, and, as American history amply illustrates, the scope of its ultimately unchecked sovereignty has consistently expanded over time and will almost certainly continue to do so in the future.
II. FEDERALISM IN THE SUPREME COURT BEFORE LOPEZ
With few exceptions, (6) the Supreme Court largely facilitated and validated (7) the expansion of federal power until its short-lived attempt to prevent the massive centralization of policy making required by President Franklin Roosevelt's New Deal. (8) The Court's attempt to stop the New Deal, however, was doomed to failure in the face of overwhelming popular support for President Roosevelt's vision. In the end, President Roosevelt did not even need to make good on his "court packing" threat to win over the support of the Court, as his landslide reelection in 1936 apparently convinced Justice Owen Roberts, the swing vote in most of the New Deal cases, that he could not save the country from a centralization of power from which it did not want to be saved.
Since President Roosevelt's appointment of several new Justices during his second term in office, the Court has never again seriously questioned the constitutional basis for New Deal-type legislation, illustrating nicely how little the Constitution itself has to do with constitutional law. The Court, in a trilogy of decisions in 1937, appeared completely and permanently to abandon all attempts to limit national legislative power on federalism grounds, (9) and subsequent decisions reinforced this conclusion. (10) In 1964, the Court announced a "rational basis" test for determining the validity of Commerce Clause legislation. (11) It was not necessary for the Court to find that a regulated activity actually affected interstate commerce; it was enough, the Justices said, to find that Congress could rationally think that it did. Given that virtually everything can rationally be said to affect interstate commerce to some degree, almost no legislation could fail this test. In the 1985 case of Garcia v. San Antonio Metropolitan Transit Authority, (12) the Court, in upholding the application of the Fair Labor Standards Act to employees of a municipal transit facility, seemed to indicate explicitly that the judiciary would no longer protect federalism through constitutional limits on federal power, declaring that "[s]tate sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." (13)
Garcia, however, turned out not to be the final word on the Court's role in protecting federalism. In its 1995 decision in United States v. Lopez, (14) the Court shocked constitutional observers by asserting a judicially-enforceable limit on the power of Congress to regulate interstate commerce.
The earliest indication of an interest by the more conservative members of the Court, led by then-Justice Rehnquist, in finding a limit on the commerce power came in 1976 in National League of Cities v. Usery. (15) In Usery, the Court invalidated the application of a federal wage control law to state employees. The Court did so, however, not on the ground that the law was an invalid exercise of the commerce power, but rather because the exercise was subject to a supposed state immunity from direct federal regulation. (16) Justice Brennan, with every reason to be confident that the era of judicial interference with federal power was long past, could hardly control his rage in a dissent joined by two of his colleagues. (17)
The decision in Usery was made possible only because Justice Blackmun unexpectedly voted with the conservatives in a separate opinion. (18) Yet, Justice Blackmun would not permit the decision to be applied in any other case. (19) Indeed, writing for the majority in Garcia, he invoked the Court's failure to apply the principle of state immunity as a reason to overrule Usery and seemingly renounce virtually all judicial enforcement of federalism. (20) It was now the conservatives' turn to dissent, in an opinion written by Justice Powell and joined by Chief Justice Burger and Justices Rehnquist and O'Connor. (21) In separate opinions, Justice Rehnquist predicted that his view would "in time again command the support of a majority of this Court," (22) and Justice O'Connor indicated that she shared Justice Rehnquist's belief. (23)
Chief Justice Rehnquist and Justice O'Connor made good on this prediction, at least to some extent, in 1991 in Gregory v. Ashcroft. (24) In a five-to-four decision, the Court imposed on Congress the mild restraint of a "plain statement" requirement where Congress seeks to limit a state's power when the state's "political functions" are involved. (25) The following year, in New York v. United States, (26) another five-member majority went a step further, holding that Congress could not require the States to implement a federal program. (27) Finally, in United States v. Lopez, (28) the Court actually invalidated a law as not authorized by the commerce power. Lopez seemingly presented to the Justices seeking to limit federal power a unique opportunity too tempting to resist.
Lopez involved a challenge to the Gun-Free School Zones Act of 1990, which made it a crime "knowingly to possess a firearm" (29) in a school zone, defined as "a distance of 1,000 feet from the grounds of a public, parochial or private school." (30) Because the Act made no reference to taxing or a federal grant, it ostensibly could only have been based on the commerce power, which Congress certainly had reason to believe was unencumbered by any judicially-enforceable limit. Such a case might not have been expected to arise again, because in this instance Congress carelessly failed to make any reference to the commerce power, either in the Act or its legislative history. Still, the district court judge dutifully upheld the Act, finding that Congress has the "well-defined power to regulate activities in an[d] affecting commerce, and [that] the 'business' of elementary, middle and high schools ... affects interstate commerce." (31)
To the government's misfortune, the Act then came before a panel of the Fifth Circuit Court of Appeals led by one of the most able, conservative, and independent-minded of federal judges, Judge William Garwood, who was joined by two colleagues willing to go along for the ride. (32) Judge Garwood made clear that if Congress had simply mentioned interstate commerce, there would have been no question as to the Act's constitutionality: "Where Congress has made findings, formal or informal, that regulated activity substantially affects interstate commerce, the courts must defer [to them] 'if there is any rational basis for' the finding." (33) "Practically speaking," the court continued, "such findings almost always end the matter." (34) But here Congress had "not taken the steps necessary to demonstrate that such an exercise of power is within the scope of the Commerce Clause." (35) No sensible person could doubt that Congress's use of the Commerce Clause to do indirectly what it supposedly had no power to do directly had long ago become a charade, but it was offensive to the dignity of the court for Congress to refuse even to play the game to which the judiciary had tacitly assented. But for the incredible sloppiness of Congress's bill drafting and Judge Garwood's willingness to take advantage of it, this exciting event would not have occurred.
The Supreme Court granted a writ of certiorari, and in an opinion by Chief Justice Rehnquist, affirmed the Fifth Circuit's decision. (36) Justice Kennedy joined the majority opinion but added a separate concurrence, joined by Justice O'Connor. Justice Thomas also joined Chief Justice Rehnquist's opinion and wrote a separate concurrence. Justice Breyer wrote a dissenting opinion joined by Justices Stevens, Souter, and Ginsburg. Justices Stevens and Souter also wrote separate dissents.
In contrast to the Fifth Circuit, the Court declined to hold that it could not apply the rational basis test in the absence of congressional findings. (37) After all it is usually the role of the Solicitor General not Congress, to find a rational basis for Congress's supposed Commerce Clause statutes. Adopting a statement made in an earlier case, the Court found that Congress may regulate three "broad categories of activity" (38) on the basis of the Commerce Clause. First, it may "regulate the use of the channels of interstate commerce," (39) prohibiting or placing conditions on the movement of things or persons across state lines. Second, it may "regulate and protect the instrumentalities of interstate commerce." (40) Finally, it may "regulate those activities having a substantial relation to interstate commerce." (41) Because the operations of the instrumentalities of interstate commerce clearly affect the commerce itself, the second category is really part of the third, and all modern litigated cases involve only the third. After...
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