Fig leaf federalism and Tenth Amendment exceptionalism.

• Author: Lund, Nelson

The Supreme Court's jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, (1) Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O'Connor in a dissenting opinion twenty years ago. If adopted by the Court, this synthesis of the O'Connor and Scalia suggestions could work a real transformation in the Court's federalism jurisprudence, and without some of the potentially radical side-effects that have thus far made the Court timorous and inconsistent. Perhaps not insignificantly, I think I can describe where it might take us without producing a hundred page article with a thousand-odd footnotes.

1. THE SUPREME COURT'S FEDERALISM REVIVAL, AND ITS LIMITS

   Stripped to essentials, recent debates among the Justices about states' rights begin with two contending propositions. The Court's more "federalist" members insist that any doctrine that gives Congress plenary authority to regulate the states must be wrong. They often point to the Tenth Amendment, which emphatically confirms that the states have reserved powers untouched by the establishment of a limited federal government. Without quite disputing this claim about reserved powers, the Court's more "nationalist" members maintain that the Constitution identifies very few protected spheres of state autonomy, and that judges should be extremely hesitant to constrain congressional power except where the Constitution provides very clear guidance.

   In the 1985 Garcia decision, the nationalist position prevailed by a vote of 5-4. Justice Blackmun's majority opinion held that the states must look to the political process, rather than to the courts, for protection from excessive federal regulation. (2) Apparently recognizing that the political process might fail in some unexpected way, however, the majority left open the possibility (albeit a seemingly remote possibility) that the Court might someday have to identify "affirmative limits" imposed on Congress by the "constitutional structure." (3) The dissenters considered the majority's passivity an improper abdication of the Court's constitutional duty, and vowed to keep fighting for meaningful restraints on federal power. (4)

   But where were federalist Justices to find "affirmative limits"? The first great problem they faced is the Court's extremely expansive interpretation of congressional power under the Interstate Commerce Clause. Much federal regulation of the states, as of private parties, is imposed pursuant to Commerce Clause authority, which had seemingly become a kind of safe harbor for Congress when no other authority could be found. As Justice O'Connor recognized in her Garcia dissent, the framers of the Constitution believed that the autonomy of the states would be protected by the fact that federal powers are "few and defined," and that the Commerce Clause in particular would give Congress only a very narrow and limited authority. (5) When the Commerce Clause was recast by the Court so that the limits became few, and congressional power undefined, this change incidentally created a threat to the basic structure of federalism.

   Unfortunately, the Garcia dissenters failed to propose a clearly workable response to that threat. Justice Powell wanted to balance the competing interests of the state and federal governments. But his opinion contained no discussion of the federal government's interest in the statute at issue in Garcia itself, and thus offered no reasoned balancing of the competing interests. Justice O'Connor proposed a somewhat different approach, in which the Court would consider the value of state autonomy an important factor in deciding whether a Commerce Clause regulation was consistent with the spirit of the Constitution under the McCulloch test. (6) Although more promising than Powell's, her approach still invited decision by ipse dixit, for it lacked an analytically definite standard. As we shall see, Scalia's Lane dissent suggests an adjustment to O'Connor's approach that could provide just what is needed.

   The debate about states' rights is closely related to broader debates about the Interstate Commerce Clause itself. The Tenth Amendment, of course, refers to the reserved rights both of the states and of the people. And state autonomy would hardly be worth protecting except for the contribution it can make to preserving the liberties of the citizenry. With respect to the Commerce Clause, the federalist Justices again insist that an interpretation that gives Congress authority to regulate anything and everything that citizens may do is inconsistent with the Constitution's careful and limited enumeration of powers, and must therefore be wrong. And once again, the nationalists have resisted demands for the kind of line-drawing that the federalists have sought to undertake. This debate has direct implications for the issue in Garcia both because regulations of the states are often justified by invocations of the Commerce Clause, and because the state governments' own power to regulate their citizens--or to decide that they should not be regulated--is often preempted by federal action under the Commerce Clause.

   Perhaps the most obvious, or naive, solution to the whole problem would be to restore the original understanding of the Commerce Clause. Justice Thomas has argued, (7) and others have confirmed with overwhelming evidence, (8) that the Clause was not meant to authorize the broad range of federal regulations that are now routinely upheld. The term "commerce" in the Constitution refers to buying, selling, and bartering, and transportation for the purpose of trade, and the Interstate Commerce Clause only authorizes regulation of commerce "among the several states." The Court has mistakenly extended the Clause far beyond its terms on the specious ground that regulating noncommercial and intrastate activities is necessary and proper because they may "affect" interstate commerce.

   With the exception of Thomas himself, nobody on the Supreme Court seems to have the slightest inclination to resurrect the original meaning of the Commerce Clause. Why not? Stare decisis! Or, perhaps more precisely, a deep fear that reinstating the Constitution's restrictions on congressional power would interfere with too many well-established and politically popular federal programs, and thereby create a political backlash that would embarrass the Justices. (9) Rather than entertain any idea so scary as that, the Court has carved out a series of small exceptions to the virtually plenary police power that Congress had been allowed to acquire. These well-known developments require only a brief summary.

   * In United States v. Lopez, (10) the Court suddenly articulated a limit on the well-established principle that Congress could regulate wholly intrastate activities with no discernable effects on interstate commerce if the aggregate effect of the class of targeted activities would substantially affect interstate commerce. Henceforth, this "aggregation" technique may not be used to justify statutes having "nothing to do with 'commerce' or any sort of economic enterprise," (11) a conclusion confirmed in United States v. Morrison. (12)

   * In a series of decisions beginning with Seminole Tribe of Florida v. Florida, (13) the Court has concluded that respect for the dignity of the states requires that they be immunized from private suits for money damages in actions based on federal law. (14)

   * In...