A Fickle Federalism
The Rehnquist Court hobbles Congress -- and the states, too.
RICHARD BRIFFAULT |
March 1, 2003
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
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.
invalidated the Gun-Free School Zones Act of 1990, which