Federalism, Contemporary Practice of

AuthorWilliam W. Van Alstyne
Pages994-997

Page 994

The Supreme Court does not enforce constitutional FEDERALISM. Rather, it enforces sufferance federalism, that is, federalism as determined by Congress, a weak form of federalism in which state laws govern particular subjects only so far as Congress decides and in which Congresss controls such subjects as it sees fit. The Court also does not now recognize any significant distinction between taxing a state and taxing a private business; the former may be subjected to national taxes imposed by Congress in any circumstance applicable to the latter. And the Court interprets the SPENDING POWER not as a limited power enabling the government to defray the expenses of its own operations and programs but as a power available to Congress to use to eliminate diversity among state laws according to its own choice. At the same time, the Supreme Court also deems Congress to possess power to restrict the means by which state or LOCAL GOVERNMENTS might attempt to raise their own revenue for their own programs, without depending on appropriations from Congress. This renders each state dependent on such funds as Congress may see fit to budget, with such strings attached as Congress decides as a way to force changes in laws otherwise not subject to its control. In brief, in the aggregate of its federalism decisions the Court acts overall as an agency of the national government on federalism questions. "Judicially constrained dual federalism" does not accurately describe federalism in the United States. Rather, "sufferance federalism"?federalism to such extent as the national government decides to be appropriate?is the system virtually de jure in the United States.

Several examples of mere sufferance federalism have been provided in four recent decisions of the Supreme Court. Instructive on the point is South Dakota v. Dole (1987), which sustained an act of Congress that disapproved state statutes permitting any person over eighteen years of age to purchase beer. Congress desired that the minimum state drinking age should be raised to twenty-one. The means selected by Congress were efficient to this end. It reduced federally appropriated matching highway funds to any state in which the lawful minimum drinking age was lower than Congress desired the state legislature to enact and reduced these funds by such a fraction as Congress could be confident would be sufficiently harsh that no state could hold out against the penalty thus imposed.

The Court, over two dissents, rejected the view that the spending power is a power merely to meet the government's own operating BUDGET as a national government (the view JAMES MADISON had held). It also rejected the view that Congress's power was at most a power to set the conditions of a general or a specific program it would be willing to help fund (e.g., the construction of such highways as would be built to congressional specifications of design, quality, and materials). Rather in Dole the Court accepted the additional view that the spending power is available to Congress to use as an oblique power for the "indirect achievement of objects which Congress is not empowered to achieve directly." It is a power, in short, to require states to adopt the same substantive law on a given subject as their neighbors have, insofar as Congress sees fit, or be penalized under federal programs of assistance at such level of disadvantage Congress is confident will be sufficient to bring about the change it desires in their laws. As illustrated by the Dole case, the Court thus acts as an active department in federalism matters, that is, an enforcing department of the national government, validating Congress's preferences not merely in respect to its own laws but in respect to the content of state law as well. The three other major federalism decisions by the Court in the most recent five years (1985?1990) are of the same general hue.

In South Carolina v. Baker (1988), for example, the Court sustained an act of Congress eliminating the federal tax deductibility of interest income received on bearer bonds issued by state or local governments, bonds commonly used as a means of financing state or local operations. In sustaining this act, the Court overruled its own unanimous holding in POLLOCK V. FARMERS ' LOAN TRUST (1895). Then, going beyond the facts of the case and the immediate legal question, Justice WILLIAM J. BRENNAN volunteered that Congress might also forbid states from attempting to raise revenue by issuing such bonds at all. In Justice Brennan's...

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