One federalism and the judicial role: enforcing the limits of Article I.

• Author: Baltes, Alexa R.

INTRODUCTION

Federalism has been at the heart of our political system since the time of the Founding. Reinvigorated by Herbert Wechsler's 1954 article on the political safeguards of federalism, (1) and by the rise of "New Federalism" in the late twentieth century, the federalism debate has ceaselessly perplexed the legal community. Scholars disagree about the safeguards of federalism, the purpose of federalism, and the continuing legitimacy of the federal structure. Focusing on the history, text, and structure of the Constitution, this Note seeks to advance that debate by engaging two points made by a prominent scholar in the field regarding the safeguards of federalism.

First, Heather Gerken's recent suggestion that scholars on both sides of the political safeguards of federalism versus judicial review debate should give up the fight (2) threatens clarity going forward and lacks historical, constitutional foundation. Professor Gerken's sensitivity to the realities of our complex federal structure sharpens debate regarding the proper approach to federalism today. (3) It is certainly true that the relationship between the federal government and the states has changed since 1789, and modern theories of federalism must be able to engage the world we inhabit. But the complexity of our system does not negate the need "to adopt one theory to rule them all." (4) While she is right to point out the "both/and" nature of federalism protection (5)--that is, both procedural safeguards and judicial review have a role in maintaining our constitutionally conceived dual system of government--it does not follow that there are "many federalisms" (6) or that a unifying theory for maintaining and protecting the proper balance of our federal structure is somehow unnecessary. The constitutionally designed federalism structure still provides the roles and mechanisms for maintaining that delicate balance of power--even if the balance, rightfully, looks different today than it did in the past. Debates about the proper safeguards of federalism may be "tired," (7) but their persistence is a testament to their importance. A unified theory of federalism, offered by the framers and entrenched in the text of the Constitution, must prevail over an "analysis] [of] which flavor of federalism best fits a given context." (8)

Second, because she does not ground her theory of federalism primarily in the text of the Constitution, Professor Gerken's later work distorts the analysis required from the Court on federalism questions. Evaluating the two main approaches the Court has taken, Professor Gerken notes: "Some of the Court's decisions define federal power in relation to the states, and others define it in isolation." (9) She finds the former, relational approach better (though not ideal) because it is more manageable and durable, and because it comes closer to recognizing the reality that "states and the federal government regulate shoulder-to-shoulder in the same, tight policymaking space." (10) Professor Gerken's insightful analysis illuminates a need for a cogent, principled approach to federalism questions that forces judges to conform to "a mediating theory for translating abstract principles into concrete doctrine" (11) instead of getting caught up in the "tangled underbrush of lawyers' tricks and logicians' games." (12) Her concerns force more precise thinking about the Court's role in this area. Nevertheless, she ultimately inverts the analysis by suggesting it is better for the Court to frame the limits imposed on the federal government in terms of state sovereignty rather than constitutional limits on federal power. (13)

This stands in tension with the Constitution's text: the Court's role in safeguarding federalism is to enforce the constitutional limits of federal power. The Constitution gives the Court no power to leverage state sovereignty as such, but it offers a clear directive for the judiciary to check congressional overreach. (14) This means, properly construed, limited federal government is a means to a split sovereignty (and thus, state sovereignty) end. Thus, Professor Gerken is misguided in her criticism that "limiting the federal government's power" is a "limit[] for limits' sake." (15) State sovereignty, in and of itself, is an end worth pursuing and one protected by the Constitution. This Note maintains that a judicial role focused on enforcing the limits of federal power provides the cogent, durable framework for analyzing federalism questions that Professor Gerken rightly demands.

Part I of this Note offers a brief account of the two main theories of federalism protection: the political safeguards (or process federalism) and judicial review. Part II then suggests a dual-safeguards approach as the single constitutionally grounded theory, and proceeds to situate the procedural safeguards and, importantly, judicial review, in the history, text, and structure of the Constitution. Next, delving into the Court's New Federalism line of decisions, Part III analyzes the implications for these two constitutionally grounded safeguards to deduce the proper framework for their respective applications. It suggests that while political safeguards may be conceived in terms of state sovereignty, the Court should frame its analysis in terms of constitutional limits on federal power. Furthermore, Part III demonstrates that judicially imposed limits on constitutionally enumerated powers offer a workable, and desirable, framework in practice. Part IV then explains why such a framework matters and defends state sovereignty as an end worthy of it all.

1. REHASHING THE TIRED DEBATE

   1. The Political Safeguards of Federalism

      In his 1954 article on the "Political Safeguards of Federalism," Herbert Wechsler argues that there is no need for judicial protection of state sovereignty because the Constitution equips the states to protect their own institutional prerogatives via the political process. (16) Wechsler emphasizes the "crucial role [played by the states] in the selection and the composition of the national authority" (17) in each of the three policy-making bodies of the federal government. First, he points to the Senate and finds it "cannot fail to function as the guardian of state interests as such." (18) Equal representation of states in the Senate, combined with the filibuster rule and the individual authority of senators, serves to protect state interests against the potential oppression of a national majority. (19) Turning to the House, Wechsler finds state interests are protected in that body as well--"though the incidence is less severe." (20) Here, he suggests that the states are protected by "[their] control of voters' qualifications, on the one hand, and of districting, on the other." (21) Lastly, Wechsler claims that state interests are also protected via the President:

      [B]oth the mode of his selection and the future of his party require that he also be responsive to local values that have large support within the states. And since his programs must, in any case, achieve support in Congress--in so far as they involve new action--he must surmount the greater local sensitivity of Congress before anything is done. (22) While the Supreme Court's jurisprudence after 1937 seemed to have already embraced Wechsler's vision of a minor (even nonexistent) judicial role in protecting state sovereignty, (23) his theory was "significant because it provided a theoretical justification" for the Court's new minimalist approach. (24) Indeed, the Court later cited Wechsler's theory to validate its decision to defer to a congressionally defined balance of power between the federal government and the states. (25) Moreover, even as the Court began to rediscover its voice in federalism issues, the political safeguards justification became a staple component of a perpetual multi-Justice dissent. (26)

      Wechsler's theory is active in contemporary legal scholarship as well. Expanding and modifying the theory in their own ways, Jesse Choper and Larry Kramer established themselves as two of the most prominent defenders of the political safeguards camp. For Choper, Wechsler's theory is part of a bigger philosophy, which conceives no role for the Court in federalism questions: "[T]he constitutional issue of whether federal action is beyond the authority of the central government and thus violates 'states' rights' should be treated as nonjusticiable, final resolution being relegated to the political branches--i.e., Congress and the President." (27) Instead of inserting itself in an area adequately protected in the political process, Choper thinks the Court should save its judicial capital for the protection of individual rights. (28) Finally, without conceding the point, Choper suggests that even if the Framers intended judicial review of federalism questions, it is simply unnecessary in our present political system. (29)

      Taking a yet more evolved approach to political safeguards, Larry Kramer focuses on the protections offered by substantive politics, rather than those inherent in political procedure. (30) In fact, Kramer is highly critical of Wechsler's theory. As he sees it, the procedural safeguards so important to Wechsler either (1) miss the mark by protecting state interests rather than autonomy, (31) or (2) are completely ineffective. (32) Focused on "protecting the integrity and authority of state political institutions," Kramer turns to the "real 'political safeguards' of federalism"--party politics. (33) Because political parties transcend every level of government, our political culture "promotes relationships and establishes obligations among officials that cut across governmental planes." (34) In turn, this "mutual dependency" protects the influence of state voices in federal laws more than merely their interests. (35)

      Though fractured over the details, advocates in the political safeguards camp share two unifying principles. First...