97 Justice Rehnquist stated that the judicial branch should be at least as much

97 justice rehnquist stated that the judicial branch

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' 97 Justice Rehnquist stated that the judicial branch should be "at least as much" ob- ligated to control itself as it was to control the other two federal branches." 8 Chief Justice Burger later quoted the same platitude to jus- tify the narrowing of the federal government's power: "This ex- presses the balancing indispensable in all governing, and the Bill of Rights is one of the checks to control overreaching by govern- ment. But it is a check to be exercised sparingly by federal au- thority over local expressions of choice going to essentially local concerns." 99 Justice Brennan interpreted The Federalist differently in National League of Cities v. Usery. 100 Justice Rehnquist, writ- ing for the majority, prohibited congressional regulation of state employees' wages as a violation of the tenth amendment. Bren- nan dissented. Relying on Number 31, Brennan insisted that the judiciary should be reluctant to interfere with congressional leg- islation over state employees under the commerce clause: "A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care .. ..,,1 Rehnquist neither quoted The Federalist nor overtly rejected Brennan's interpretation. 95. 408 U.S. 238 (1972). 96. 5 U.S. (1 Cranch) 137 (1803). 97. 408 U.S. at 470 (Rehnquist, J., dissenting) (quoting THE FEDERALIST, supra note 1, No. 51 at 322 (J. Madison)). 98. 408 U.S. at 470 (Rehnquist, J., dissenting). 99. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 87-88 (1981) (Burger, C.J., dissenting). 100. 426 U.S. 833 (1976) (overruled by Garcia v. San Antonio Metropolitan Transit Auth., 105 S. Ct. 1005 (1985)). 101. Id. at 857 n.1 (Brennan, J., dissenting) (quoting THE FEDERALIST, supra note 1, No. 31 at 194 (A. Hamilton)). HeinOnline -- 1985 BYU L. Rev. 85 1985
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86 BRIGHAM YOUNG UNIVERSITY LAW REVIEW However, Justice O'Connor in her concurrence/dissent in Federal Energy Regulatory Commission v. Mississippi I0 2 re- sorted to The Federalist in asserting that Usery properly ana- lyzed the tenth amendment. She quoted Hamilton in Numbers 15 and 16 for two propositions: (1) "the Constitution marked the 'difference between a league and a government,' because it 'ex- tend[ed] the authority of the union to the persons of the citi- zens,-the only proper objects of government;' "03 and (2) "the execution of the laws of the national government. . . should not require the intervention of the State Legislatures.' 10 4 Hamilton might be amused to see his attack on the Articles of Confedera- tion become a blueprint for a new form of federalism. Concern- ing the Articles of Confederation, Hamilton had stated "that though in theory their resolutions concerning those objects are laws constitutionally binding on the members of the Union, yet in practice they are mere recommendations which the States ob- serve or disregard at their option."' 1 05 In writing Number 15, Hamilton never meant to exempt the states from federal power: "The measures of the Union have not been executed; and the delinquencies of the States have step by step matured them- selves to an extreme, which has, at length, arrested all the wheels of the national government and brought them to an aw- ful stand." 108 Like
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