Federalism and the Court: Congress as the Audience?

• Author: Vicki C. Jackson
• DOI: 10.1177/000271620157400111
• Published date: 01 March 2001
• Date: 01 March 2001
• Subject Matter: Articles

145

Federalism

and

the

Court:

Congress

as

the

Audience?

By

VICKI

C.

JACKSON

Vicki

C.

Jackson

is

a

professor

of law

at

Georgetown

University

Law

Center.

She

is

the

authorof many

articles

on federalism

and

the

Eleventh Amendment

and

writes

and

teaches

as

well

in

comparative

constitutional

law.

Professor

Jackson

serves

on

several

academic

and

professional

boards,

including

the

State

and

Local

Legal

Center’s

Advi-

sory

Board,

the

International

Association

of Constitutional

Law

Executive

Board,

and

the

D.C.

Bar

Board

of

Governors.

ABSTRACT:

The

Supreme

Court’s

revival

of federalism

as

a

limit

on

national

power

has

roots,

in

part,

in

the

Court’s

mistrust

of

the

na-

tional legislative

process

and

its

sense

of

institutional

competition

with

Congress.

To

the

extent

that

the

Court

is

concerned

about

care-

less

legislating,

six

rules

of

"care

and

craft"

in

drafting

legislation

are

proposed

for

members

of

Congress

to

consider:

develop

a

factual

re-

cord,

reflect

the

source

of

constitutional

authority,

tailor

the

statute

to

reach

"national"

and

not

"local"

matters,

consider

the

implications

of

decentralized

enforcement

for

surviving

constitutional

challenges

as

well

as

for

efficacy,

consider

whether

state

governments

are

treated

comparably

to

the

federal

government,

and

be

particularly

cautious

in

efforts

to

overrule

the

effects

of

the

Court’s

decisions.

To

the

extent

the

Court

is

concerned

with

its

own

institutional

preroga-

tives,

however,

or

is

committed

to

a

categorical

divide

between

areas

constitutionally

committed

to

the

states

and

the

federal

government,

care

and

craft

alone

will

not

be

a

solution.

NOTE:

The

views

expressed

herein

are

those

of

the

author

alone.