Panel 5: Federalism and Separation of Powers

• Jurisdiction: United States,Federal
• Citation: Vol. 35 No. 5
• Publication year: 2019
• topic: Constitutional Law,Federal

Panel 5: Federalism and Separation of Powers

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PANEL 5: FEDERALISM AND SEPARATION OF POWERS

Moderator: Eric Segall

Panelists: Stephen Griffin, Neil KInkopf, and Ilya Sompn

Professor Eric Segall: It is Friday, it is getting late, but we do have two excellent panels to go. Thanks for bearing with us for the rest of the day. We have Ilya Somin from George Mason, I'm sorry, Antonin Scalia, School of Law, we have Steve—

Professor Ilya Somin: Law School.

Professor Segall: Law school, right. We have Steve Griffin from Tulane, and we have Neil Kinkopf, who most of you know, from GSU. This panel is going to be about federalism, and it's going to be about separation of powers. We're going to start with federalism, though these topics may bleed together in some cases. There used to be a lot of talk about the Rehnquist Court's new federalism once Justice Thomas replaced Justice Marshall in 1991. Can we talk a little bit about what that new federalism was and what role Justice Kennedy played in that new federalism?

Professor Somin: From the 1930s until the 1990s, the Supreme Court, by and large, made almost no effort to restrict the scope of federal power in a structural way, on the basis that Congress or the President had exceeded the scope of what the federal government is allowed to do structurally. Beginning in the 1990s with cases like New York v. United States in 1992, which I think was the first really significant modern case in this area, and then going on to Lopez and other cases later, the Supreme Court did begin to revive federalism in several ways.

One is, they said, it is not the case that the federal government's power to regulate interstate commerce means the power to regulate

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pretty much anything. There are going to be some limits. It's not easy to specify exactly what these limits are, but in several cases, beginning in Lopez, they said there are constraints. They also said, more firmly, that the federal government at least as a general rule, is not allowed to commandeer state and local governments. That is, it's not allowed to say, "We're going to force state and local government officials to help enforce federal law and carry out other functions."

They have also, most notably in NFIB v. Sebelius, the Obamacare case, ruled that there are constraints that are meaningful on the kinds of conditions that can be imposed on the state governments—as a condition of getting grants from the federal government. Some constraints were there even before the so-called "Rehnquist Revolution," but I think it's fair to say that the Rehnquist Court, and later the Roberts Court, clarified these conditions and restrictions and enforced them more tightly than before.

With respect to the Eleventh Amendment, they've taken a tougher line on protecting the state sovereign immunity against the federal government. Then finally, with respect to the Fourteenth Amendment, Section 5, which says the Congress has the power to enforce the restrictions on the state and local governments of the Fourteenth Amendment by appropriate measures, beginning in 1993 in an opinion written by Kennedy in the City of Boerne, the Supreme Court has said that there must be "congruence and proportionality here. That is, there must be some strong connection between the violation of the Fourteenth Amendment by state and local governments that's being remedied and whatever measure Congress is enacting,. Things that go beyond that can be struck down and indeed have been in at least a couple of major Supreme Court cases.

There are some other issues as well, but these are the big ones. I think it's fair to say that, in every single one of these areas, Kennedy played a crucial role, either by writing important opinions, as in City of Boerne, or by providing a crucial fifth vote for what were often five-four majorities. Most of these cases were decided 5-4, or 6-3, or

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in a couple of instances, by 7-2. Kennedy was absolutely crucial to the majority. In various cases, he articulated some important rationales for aspects of the so-called "federalism revolution," as well.

So, he played probably as big a role in all of this, as any single Justice, perhaps bigger than Rehnquist, who helped begin it, arguably bigger than O'Connor, if only because he was around for longer of it than O'Connor was, and probably bigger than Scalia as well, in that he articulated more of the dominant doctrines. Clarence Thomas would have gone further, I think, than Kennedy was willing to do. But Thomas rarely, if ever, managed to write either significant majority opinions, or highly influential concurring opinions in this area of doctrine.

Professor Segall: Let's talk about Kennedy's rationales, because I think his view of accountability, which Justice O'Connor mentioned first in New York but Justice Kennedy definitely leaped on, played a big role here. What was Kennedy's view of accountability between the states the federal government, and the people?

Professor Neil Kinkopf: Sure. Before we get to that, sorry to object to the question.

Professor Segall: I'm used to it.

Professor Kinkopf: Eric and I object to each other all the time. I just want to add one thing to Ilya's very fine description of the new federalism. That is, crucial to Justice Kennedy and Justice O'Connor was the assertion of judicial power. So, not just that there are limits but that it is the role of the Court to articulate and enforce what those limits are, which you mentioned at the outset that we were going to blend together federalism and separation of powers. So, here we are, the first question I think does that.

So, Justice Kennedy, I think along with Justice O'Connor, articulated a privity theory of federalism. That is that our system of

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federalism, where we split the atom of sovereignty, envisions in Justice—

Professor Segall: You don't think that's as good as Mike's—

Professor Kinkopf: It's fine, it's fine. I just don't want to be in the blast radius.

Professor Segall: Okay.

Professor Kinkopf: So, for Justices O'Connor and Kennedy, but really for Justice Kennedy, what that meant is there are supposed to be distinct lines of communication, of accountability, of sovereignty between the federal government and the people distinct from the lines between the state government and the people. Neither of those two governments should interfere with the relationship—direct relationship—between the citizen and the state government if it's the federal government doing the interfering or between the citizen and the federal government if it's the state government that's doing the interfering.

So, what Justice Kennedy says in case after case, across the whole range of doctrinal categories that Ilya laid out, Justice Kennedy tries to apply this theory. He brings it up in every one of the cases, and says, "The problem with what"—usually it's the federal government—"the problem with what the federal government has done is it interferes with the relationship between the state government and its citizens in a way that renders accountability problematic." So ultimately, his theory went back to the idea that the federal government and the states are supposed to compete with one another for the affection of the people, and that would preserve liberty.

That system can only work if the people know who to hold accountable for telling them they have to buy health insurance or for telling them that a low-level radioactive waste disposal facility is going to be sited in their backyard. If the federal government can impose that but trick the people into thinking the states ought to be

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held accountable, well that's problematic, that undermines our system of federalism. So, that idea of accountability is crucial to Justice Kennedy. I think more than any other Justice, more than Justice O'Connor, who first articulates that in New York v. United States, Kennedy adheres to it across the whole range of federalism cases, and he does it when it's the inverse.

So, in term limits, a case that you didn't mention, where the claim is that the states are interfering with the federal government by states imposing term limits on federal members of Congress, Kennedy adheres to his accountability theory, his divide-the-atom-of-sovereignty theory and says, "Well in this case, the states are interfering, and we shouldn't understand their power as allowing them to do that." Justice O'Connor and the other conservative Justices all just ignore that in the term limits case. But Kennedy, we've talked a lot about his inconsistency or his capaciousness, in this respect anyway, he was relatively consistent through the cases.

Professor Stephen Griffin: Well, I was thinking in terms of this panel, and some of the others, when you're dealing with a Justice who's been in the majority side so much, are you talking about only his opinions, his work product, or are you talking about the Court as a whole? You need to look at both, probably. But when I look at federalism, Commerce Clause, I see some distinctions because in Lopez, which is both federalism and Commerce Clause, and by the way, I agree that these cases merge over into separation of powers. It's hard to talk about federalism and then Congress's power vis-a-vis the states without talking about Congress's power generally. That's the judiciary versus Congress, separation of powers.

In Lopez, it seems to me, he carved out a little more of a distinctive position, where he said a little more clearly than Rehnquist, "We're not interested in questioning the New Deal, but what we see here is a clear involvement of the federal government, and a matter of traditional state concern." So, he makes Lopez a little more about federalism than the Commerce Clause simplicitor. But I'd have to

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say, then I was taken aback by the realization that this Lopez concurrence was almost as long as the Lopez majority opinion. But, I can't really quite reconcile his approach in Lop...