Repairing the irreparable: revisiting the federalism decisions of the Burger Court.
Author | Louk, David Scott |
INTRODUCTION I. THE TENTH AMENDMENT REANIMATED: FRY & NATIONAL LEAGUE OF CITIES (1975-76) A. Inheriting the Nationalist Jurisprudence of the Warren Court B. Reviving the Tenth Amendment: National League of Cities and the Traditional Governmental Functions Test C. Blackmun as the Tie-Breaker D. A Decision in Search of a Doctrine II. A DOCTRINE IN DISREPAIR: MODEL, LONG ISLAND RAILROAD, FERC V. MISSISSIPPI & EEOC V. WYOMING (1981-83) A. Hodel, Long Island Railroad, and the Dysfunction of the Traditional Governmental Functions Test B. FERC v. Mississippi: O'Connor Foreshadows the "New Federalism" C. EEOC v. Wyoming: A Federalism Doctrine Impaired III. REPAIRING THE IRREPARABLE: GARCIA (1985) A. A Clerk Lobbies Blackmun To Second-Guess Himself B. Reargument EPILOGUE: FROM THE ASHES OF TRADITIONAL GOVERNMENTAL FUNCTIONS RISES THE "NEW FEDERALISM" "The problem is how best to accommodate the commerce clause and federalism when they collide. "
--Justice Lewis F. Powell, Jr., 1975. (1)
Drawing on the rich archival materials preserved by the Justices, this Note provides the first detailed account of the story behind the federalism jurisprudence of the Burger Court. It is the first piece of scholarship to examine at length the papers of the members of the Burger Court--Justices Blackmun and Powell in particular--on the major federalism decisions decided by the Court in the late 1970s and early 1980s. These letters, memos, and draft opinions help explain the seemingly incoherent genealogy of the Burger Court's federalism jurisprudence, illuminate the Court's influence on our contemporary federalism doctrines, and enrich our understanding of how the nation's highest court functions as an institution.
The stories this Note tells revolve around two pivotal five-four decisions of the Court: National League of Cities v. Usery, (2) decided in 1976, and Garcia v. San Antonio Metropolitan Transit Authority, (3) decided nine years later in 1985. Cities signaled the beginning of the Court's modern federalism jurisprudence: in striking down a federal statute that regulated state and local employees' salaries, it became the first case in decades to overturn a federal law on federalism grounds. Cities resurrected the Tenth Amendment as something more than the mere "truism" the Court had declared it three decades earlier in United States v. Darby. (4) Widely seen as a landmark ruling at the time it came down, Cities held that the Tenth Amendment protected the states' "traditional governmental functions" from undue intrusion by the federal government. (5) Despite Cities's potentially far-reaching implications, it was surprisingly hard to implement; in subsequent cases, the Court would repeatedly avoid application of its holding before finally abandoning the project altogether in Garcia.
Understanding this turn of events remains relevant to present-day federalism debates. The Burger Court's federalism decisions--some of which were, according to Justice Powell, among "the most important" cases to come before him (6)--set in motion the doctrine that continues to govern the balance between Congress's Commerce Clause powers and the Tenth Amendment's protection of state prerogatives. The Supreme Court's federalism cases are among its most impactful in recent decades, as federalism has become a battleground for an increasing number of policy clashes. (7) Revisiting the origins of modern federalism helps us appreciate how the doctrine developed into its current form.
In telling the story of the Burger Court's federalism decisions, I focus on three periods. The first is marked by the dramatic revival of the Tenth Amendment in the mid-1970s with Fry v. United States (8) and Cities. Drawing on previously unexamined archives, this Note reveals how behind-the-scenes maneuvers in Fry set the stage for the Court's landmark decision in Cities. On the surface, Fry's seven-one decision against the States--relying on Warren Court precedents--seems hard to square with Cities's five-four decision for the States only a year later. After all, Cities overturned those same Warren Court precedents. As my research reveals, however, an insurgent rebellion by three Justices in Fry resulted in a muted compromise opinion that said little but deliberately left open the possibility for the Court's resuscitation of the Tenth Amendment a year later in Cities.
The second period, from roughly 1981 to 1983, finds the Court struggling to apply the "traditional governmental functions" doctrine that it had articulated in Cities. The archival materials reveal that the Justices were closely attuned to the practical consequences of deciding for or against the States, and were more open-minded about both sides of the debate than is commonly thought. The Justices' focus on real-world effects also helps explain Cities's gradual desuetude: as the activities of states and private actors increasingly converged, merged, or blurred, the theory of traditional governmental functions first announced in Cities was thwarted by the practical challenges of applying it in case after case.
The third and pivotal period, beginning in 1984, finds the Court in upheaval over Justice Blackmun's about-face in Garcia. Mere weeks before his majority opinion was scheduled for publication, he would switch sides and join the dissenters in overturning Cities. The opinion he ultimately wrote in Garcia appears deeply indebted to one of his clerks, who urged Justice Blackmun to reverse himself--and take the Court with him.
This original historical account enhances our understanding of modern American federalism by illuminating the context in which the Supreme Court issued its opinions. (9) I argue that the Burger Court's struggles reflect two ongoing tensions in the Court's federalism jurisprudence. The first is the tension between purity and pragmatism. The Burger Court's behind-the-scenes deliberations reveal the Justices struggling mightily to apply and refine the conceptually neat "traditional governmental functions" doctrine laid down in Cities. Simple enough in theory, the Cities test proved difficult to apply in practice. Close examination of the papers reveals that several Justices--not only Justice Blackmun--struggled to find a practicable way to identify protected functions. As Justice Blackmun ultimately concluded when he overturned Cities, "Attempts by other courts ... to draw guidance from this model have proved it both impracticable and doctrinally barren." (10)
The Burger Court's federalism jurisprudence also raised a second tension--one which I do not believe has been discussed elsewhere, and which was especially relevant to members of the Court more inclined to favor state sovereignty. Although Chief Justice Burger and Justice Powell appeared at times to be ardent defenders of state prerogatives, they were not always so confident behind the scenes. I argue that this was in part because the conservative Justices became prisoners of their own doctrine. Cities's traditional governmental functions test led to a catch-22: the only way to protect the states was to essentialize certain services--which might otherwise be privately provided--as quintessentially governmental. (11) Expanding the judicially endorsed reach of the state would have been an unfamiliar position for conservative jurists like Justice Powell, who were inclined to favor free enterprise over an expansive, socializing government. (12) Thus, the Burger Court's federalism doctrine contained a second tension: probusiness conservatives were forced to choose between essentializing services as governmental at the local level or expanding the government's reach at the federal level.
To fully understand the federalism doctrines of the Rehnquist and Roberts Courts, then, we must situate them in the context of the Burger Court's jurisprudence. The Burger Court's federalism cases illustrate pitfalls inherent in policing the boundary between functions of the states and the federal government that later Courts have sought to avoid. While the tensions the Burger Court encountered are not unique to that era--adjudicating federal-state disputes has been among the Court's most controversial functions since Martin v. Hunter's Lessee (13)--the focus of the debate has shifted in recent years. In response to the struggles of the Burger Court, I argue, the federalism jurisprudence of the Rehnquist and Roberts Courts has homed in on more clearly definable aspects of states, such as the commandeering (in Printz v. United States) (14) or coercion (in New York v. United States (15) and National Federation of Independent Business v. Sebelius) (16) of state actors. These categories are more readily identifiable, if no less hotly contested. (17) Moreover, they free conservative-minded jurists from choosing between state sovereignty and free enterprise.
The Justices' papers--especially the remarkably thorough and carefully preserved conference notes of Justices Blackmun and Powell--also provide insight into the workings of the Supreme Court as an institution. In part, the archival materials confirm what legal realists have long suspected about the craft of judicial decision making: the Court was focused more on policy, outcomes, and real-world consequences than its sometimes abstract-sounding opinions might suggest. The Justices' papers show that they often concentrated on the practical challenges and problems each individual case raised, debating at conference the anticipated effects of their proposed decisions. In the frequent absence of straightforward constitutional resolution, the members of the Burger Court were left to weigh the costs and benefits of each challenged law.
From their papers, the members of the Burger Court also appear more open-minded and less rigidly ideological than might be assumed. (18) Correspondence among the Justices and their clerks produced substantial changes of opinion. The Justices' notes and internal memoranda...
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