Leveraging federalism: the real meaning of the Rehnquist Court's federalism jurisprudence for states.

• Author: Pickerill, J. Mitchell
• Position: Perspectives: Federal Jurisprudence, State Autonomy

The Rehnquist Court has been credited with, or accused of--depending upon one's perspectivc--creating a "federalism revolution." Undoubtedly, the Rehnquist Court has dusted off seemingly long-forgotten federalism provisions in the Constitution and used them as the basis for invalidating numerous federal laws. This court has found limits to congressional power under the Interstate Commerce Clause of Article I (e.g., United States v. Lopez (1) and United States v. Morrison (2)), prohibited the federal government from commandeering states and reinvigorated the idea of state sovereignty under Tenth Amendment (e.g., New York v. United States, (3) Printz v. United States, (4) Mack v. United States, (5) and Alden v. Maine (6)), limited Congress's "remedial" authority under Section 5 of the Fourteenth Amendment (e.g., City of Boerne v. Flores, (7) Kimel v. Florida Board of Regents, (8) and Board of Trustees of the University of Alabama v. Garrett (9)), and advanced a broad theory of state immunity from civil lawsuits under the Eleventh Amendment (e.g., Seminole Tribe of Florida v. Florida, (10) Alden v. Maine, (11) College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board, (12) Kimel v. Florida Board of Regents, (13) and Board of Trustees of the University of Alabama v. Garretp (14)).

These lines of cases have provoked a good deal of commentary on and off the Court. As Linda Greenhouse observed in the New York Times, "[n]ot since the Supreme Court's resistance to the New Deal crumpled in the late 1930's has the court been so hostile to the exercise of federal power." (15) Of course, the federalism coin is two-sided. On the one side, a bust of federal power protrudes, while on the other, the contours of state power are etched. Nonetheless, the two sides are not independent of one another, and in order to understand the meaning of the Court's federalism jurisprudence for states, it is essential to get a grasp on the impact of the Court's decisions on the national government--especially in Congress. Thus, understanding the meaning of the Court's federalism decisions for states requires a proper understanding of the relationship and interconnections among the Court's constitutional interpretations, congressional decision-making, and the role of states in the national lawmaking process.

The first section of this essay briefly explores the target of the Rehnquist Court's federalism jurisprudence and argues that the main thrust of the Court's federalism doctrine has been to limit federal legislative powers, as opposed to building up state powers. However, the effectiveness of the Court's attempts to limit federal powers remains uncertain. The second section then explores the meaning of the Court's actions for states and contends that the Court's decisions are not unilaterally bolstering state powers, but that the Court's jurisprudence may provide state and local governments leverage against the federal government if they assert themselves appropriately. The final section examines the limitations of the leading theoretical explanations of the Rehnquist Court's federalism decisions, most prominently manifested in the legal academy by the political safeguards versus judicial safeguards debate.

1. FEDERALISM, THE REHNQUIST COURT, AND CONGRESS

   Although many commentators have discussed both sides of the federalism coin, for the most part, the Rehnquist Court appears to be more focused on limiting congressional powers than on bolstering state powers, suggesting to some that the Court is really engaged in a separation-of-powers battle. In the Washington Post, for example, Suzanna Sherry asserted that "not since the New Deal has the Supreme Court so consistently set itself, and the Constitution, against Congress." (16) After the Court handed down its decision in Board of Trustees of the University of Alabama v. Garrett, (17) Linda Greenhouse wrote an article in the New York Times entitled simply: The High Court's Target: Congress. (18) In their assessment of the Court's commerce power and Section 5 cases in the Michigan Law Review, law professors Ruth Colker and James J. Brudney have argued that the Court is "[d]issing Congress." (19)

   A simple count of the legislation struck down by the Court supports these claims. For instance, from 1952 through the end of the 1993 term, the Supreme Court struck down forty-four federal laws and 355 state and local laws, or about one federal law and seven state and local laws per term. On the other hand, from the 1994 term through the 2000 term, the Court struck twenty-four federal laws and twenty-five state and local laws--more than three federal statutes and three state and local laws per term. (20) Thus, while the Court has substantially increased its constitutional scrutiny of federal legislation, it remains fairly vigilant over state and local laws.

   In addition to the raw number of federal statutes being struck down, the qualitative nature of the Court's federalism jurisprudence also suggests a stronger focus on Congress than the states. The commerce power and Section 5 decisions draw judicially imposed lines around explicit grants of power to Congress. Even the Tenth Amendment decisions strike a stern tone regarding Congress's attempts to commandeer states by making them implement federal power, while also paying homage to state sovereignty. Eleventh Amendment jurisprudence, while seeking to protect state immunity from civil lawsuits, is coupled with strong judicial scrutiny over the scope of Congress's power to pass the statutes that provide the bases for those suits.

   Although the Supreme Court's main target appears to be the limitation of congressional powers, it is not clear how effective the Court's decisions have been at achieving that goal. First, Congress might have alternative constitutional authority, such as its so-called spending power, for enacting legislation similar to much of that invalidated...