Do as We Say and Not (necessarily) as We Do: The Constitution, Federalism, and the Supreme Court's Exercise of Judicial Power

AuthorJohn Tuskey
PositionAssistant Professor, Regent University School of Law

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All who have taken a basic constitutional law course know (or should know) that the Constitution safeguards liberty in large part by dividing governmental power.1 The Constitution divides power both horizontally- between the three branches (legislative, executive, and judicial) of the federal government-and vertically-between the federal government and the states.2 The division of power between the federal government and the states is commonly known as the principle of federalism.3 Interestingly, the word "federalism" appears nowhere in the Constitution's text; the Constitution contains no "federalism clause." Yet, the structural principle embodied by the word "federalism"-the division of power between the federal government and the states-does exist within the document.

No one seriously disputes that the Constitution contains the structural principle of federalism.4 This lack of dispute, however, still leaves open questions about what exactly federalism is, what the proper federal-state boundary should be, and whether, to what extent, and by whom that boundary can be enforced. Where and how is federalism embodied in the Constitution? Is the boundary between federal and state power really enforceable? How is that boundary to be enforced? What are the respective roles of the courts and the political system in policing thatPage 154 boundary?5 Is the boundary judicially enforceable? To what extent? Is it appropriate for federal courts (in particular, the Supreme Court) selfconsciously to play the role of "jurisdictional policeman"6 between the federal and state governments?

As to the first question-where and how federalism is embodied in the Constitution-the Constitution accomplishes the division of power between the federal and state governments by empowering the federal government to exercise only those powers delegated to it in the Constitution. The Constitution establishes the federal government's three branches and sets forth the powers each branch may exercise.7 Implicit in this is the idea that the federal government may exercise only those powers the Constitution sets forth (or those powers fairly implied from the powers set forth).8 All other governmental power rests with the states or the people. The Tenth Amendment makes explicit what constitutional structure implies: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."9

It follows that Congress violates federalism limits when it acts outside its constitutionally delegated powers.10 If Congress enacts a statute that is within its power to enact, even if that statute somehow restricts state action, Congress has not violated the principle of federalism. However, if that statute is not within Congress's power to enact, Congress has violated the principle of federalism by restricting state action without constitutionalPage 155 authority or by usurping a power that belongs to the states or people under the Constitution.11

In a series of decisions issued over roughly the past one and one-half decades, a majority of the Supreme Court (which I will call the "federalism five")12 has clearly indicated its belief that federalism boundaries are, to a great extent, judicially enforceable and that it is entirely appropriate for the Court to play jurisdictional policeman in disputes regarding federalism boundaries.13 The federalism five have not been reticent about telling Congress what it may do with respect to the states and what private activity Congress must leave to state regulation.14 Thus, despite the fact that neither the Eleventh15 nor the Tenth Amendment16 mentions sovereign immunity,17 the federalism five have found that both represent a principle of state sovereign immunity, which generally prohibits Congress from creating causes of action in state or federal court that are directly enforceable against states, without the states' consent.18 The federalism five also have held that the Tenth Amendment prohibits Congress from directing state legislatures to enact congressionally-mandated legislation19 and directing state executive officers to enforce federal law.20

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Additionally, the federalism five found federal statutes unconstitutional because these statutes exceeded Congress's power to "regulate Commerce . . . among the several States."21 And finally, in City ofBoerne v. Flores22 (a case this Article will discuss in detail), the Court invoked federalism as a reason for limiting Congress's power to enforce the Fourteenth Amendment.23

Each case in which the Supreme Court has policed federal-state jurisdictional boundaries involved the exercise of the Court's power of judicial review-the Court's power to refuse to give legal force to an action of one of the other branches of the federal government or of a state (e.g., by refusing to apply a statute) because that action is inconsistent with the Constitution.24 Like the word "federalism," the power of judicial review does not appear explicitly in the Constitution. Yet, it is nowPage 157 commonly accepted that this power is implied in the Constitution and exists in federal courts.25

Federal courts, like Congress and the executive branch, exist only because the Constitution created them.26 Therefore, like Congress and the executive branch, federal courts are part of the federal government. This may seem too obvious to bother stating, but it underscores an important point: judicial review by federal courts is as much an exercise of federal governmental power as Congress enacting a statute or the executive branch executing federal law. Because federal courts may exercise the power of judicial review over state action as well as federal action,27 that exercise of federal power can directly affect federal-state relations. Thus, in a case involving allegedly unconstitutional state action, when the Supreme Court exceeds the limits of its power of judicial review to invalidate the action, the Court has transgressed federalism bounds just as Congress does when it passes a statute affecting the states that exceeds the limits of congressional power. In this sense, every exercise of judicial review of state action creates a federalism case.

Of tentimes, the Court (including the Justices in the federalism five) seems to have missed this point. While paying fealty to federalism in opinions telling Congress what it cannot do with respect to the states, members of the federalism five have all, to a greater or lesser extent, appeared less concerned about how the Court's review of state action inappropriately restricts legitimate state prerogatives. The federalism five have been telling Congress not to order the states around, but while doing so the Justices in that majority have remained committed to judicially-Page 158 created doctrines that allow the Court to order states around in the supposed name of the Constitution.

I say "supposed" because these doctrines are not found in the constitutional text (or, at least, the Court has not bothered to explain how these doctrines are found in the constitutional text). In reality, these doctrines allow the Court to second-guess state action on what can only be described fairly as policy grounds, rather than on legal grounds. The worst offenders among the federalism five in this respect are Justices O'Connor and Kennedy. It is no surprise that the best example of members of the federalism five actively promoting such doctrines is Justice O'Connor's and Justice Kennedy's participation in jointly authoring the lead opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.28 In Casey, the Court upheld what the joint authors termed the "central holding" in Roe v. Wade29 that the Constitution's Due Process Clauses30 protect a woman's right to have an abortion.31 To reach this conclusion, Justices Kennedy and O'Connor combined a definition of due process liberty that, if taken seriously, would call into question any government action restricting individual conduct, with a conception of stare decisis that exalts the Court's constitutional decisions over the Constitution on which those decisions are ostensibly based.32

Casey was an abuse of the power of judicial review. Inferring the power of judicial review from a Constitution that nowhere expressly grants the power is ultimately justified because the Constitution, being superior to other forms of law in our system, necessarily displaces any law or action that conflicts with it. Early courts saw no justification for displacing legislative or executive action unless the Constitution required that result.33 The Constitution established the apparatus for self-government through representatives.34 The people, through their representatives, ought to be left to govern themselves unless the Constitution requires otherwise. Judicial review historically involved determining whether government action violated a rule stated or fairly implied by the Constitution.35

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Judicial review did not involve determining whether government action ought to be invalidated because the government's interest was not sufficient to justify the action. Stated differently, constitutional provisions were not treated as mere generalities that invited specification by the Court based on what the Justices thought best, all things considered. The Supreme Court early on eschewed the power to second-guess political agents on questions of degree, which...

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