The assumptions of federalism.

• Author: Chemerinsky, Erwin
• Position: Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O'Connor

INTRODUCTION I. THE MODELS OF FEDERALISM II. THE REHNQUIST COURT AND FEDERALISM AS LIMITS A. Limiting the Scope of Congress's Powers B. The Expansion of Sovereign Immunity C. Revival of the Tenth Amendment III. THE ASSUMPTIONS OF FEDERALISM AS LIMITS IV. GETTING PAST THE ASSUMPTIONS OF FEDERALISM CONCLUSION INTRODUCTION

When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, the Supreme Court has limited the scope of Congress's powers and has greatly expanded the protection of state sovereign immunity. In 1995, for the first time in sixty years, the Supreme Court declared a federal law unconstitutional as exceeding the scope of Congress's Commerce Clause power. (1) For only the second and third times in sixty years--and the first time, the case was expressly overruled--the Court invalidated a federal law for violating the Tenth Amendment. (2) At the same time, the Court has used federalism to enlarge the states' sovereign immunity in federal court for violations of federal statutes. (3) These decisions have spawned hundreds of lower court decisions concerning federalism and have ensured that federalism will be a constant issue before the Supreme Court for years to come.

Virtually all of the decisions protecting federalism were by a 5-4 margin, with the majority comprised of Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. In the last few years of the Rehnquist Court, however, the federalism revolution waned as the Court consistently ruled in favor of federal power. (4) While the Court did not overrule or undercut its earlier decisions, the pendulum did not swing any further in the direction of the federalism revolution. Strikingly, some of its decisions in favor of federal power--such as Tennessee v. Lane (5) and Central Virginia Community College v. Katz (6)--were 5-4 decisions with Justice O'Connor in the majority. Nevada Department of Human Resources v. Hibbs (7) was a 6-3 decision, with both Chief Justice Rehnquist and Justice O'Connor in the majority.

In this Article, I conclude that the Rehnquist Court's federalism decisions rested on unsupported assumptions. However, it must be recognized that the federalism decisions they replaced had rested on contrary, but equally unsupported, assumptions. Constructing a meaningful and desirable theory of federalism requires reasoning from the underlying values of federalism and not relying on unwarranted assumptions.

Part I of the Article argues that, throughout American history, the Supreme Court has shifted between two models of federalism: (1) federalism as empowerment and (2) federalism as limits. The former seeks to empower government at all levels to deal with society's problems. A core feature of federalism as empowerment is that it broadly defines the scope of federal power to equip the federal government with authority to take socially desirable actions. Initially articulated by John Marshall, (8) this was the vision of federalism during the nineteenth century and from 1937 until the 1990s. The alternative vision sees federalism as a means of limiting federal power, especially to protect the authority of state governments. This was the vision of federalism from the late nineteenth century until 1937.

Part II argues that, until its last few years, the Rehnquist Court followed the latter vision of federalism as limits. This was manifest in three sets of doctrines. First, the Court limited Congress's powers under the Commerce Clause and under Section 5 of the Fourteenth Amendment. Second, the Court revived the Tenth Amendment as a limit on federal power by holding that Congress may not compel state legislative or regulatory activity. Third, the Court greatly expanded state sovereign immunity by limiting Congress's power to authorize suits against state governments and by holding that states may not be sued in state courts or federal agency proceedings.

Part III argues that the Rehnquist Court's federalism decisions rest on a series of unsupported assumptions. In particular, I identify seven assumptions:

1. It is for the judiciary to impose limits on Congress in the name of protecting federalism and the authority of state governments; the political process, with minimal judicial review, is not adequate for this purpose.

2. There is a meaningful and desirable distinction between economic and noneconomic activities in terms of Congress's authority to regulate commerce among the states.

3. Federal laws that compel state and local governments to comply with federal mandates undermine accountability by confusing voters as to whom to hold responsible.

4. Congressional expansion of rights is not "enforcement" of rights within the meaning of Section 5 of the Fourteenth Amendment.

5. Sovereign immunity is a constitutional principle beyond the scope of the Eleventh Amendment, and it outweighs in importance government accountability as a constitutional principle.

6. The desire to protect the authority of state governments does not require a narrow preemption doctrine.

7. The social desirability of federal legislation does not matter in evaluating whether laws violate principles of federalism.

   These assumptions have many striking characteristics. All are reasonable, but the opposite assumptions are equally reasonable. In fact, the prior era of Supreme Court decisionmaking largely rested on the opposite assumptions. Moreover, none of these assumptions provides a sound basis upon which to rest federalism decisions. Some are empirical in nature, yet they lack an empirical foundation. Some are based on definitions. Others are based on value judgments that are not justified.

   Part IV argues that getting past these assumptions requires a different approach to federalism, one that reasons from the underlying goals of federalism. Part of the reason for the heavy reliance on assumptions is that the traditional values asserted for federalism--preventing tyranny and protecting states as laboratories for experimentation--are not useful and have nothing to do with the actual decisions. Two values should be key: advancing liberty and enhancing effective government. Other values include: efficiency, as sometimes it is more efficient to have action at the national level and sometimes at the local; participation, as sometimes national action better engages involvement and other times localism does so; community empowerment, which is sometimes a benefit of decentralization; and economic gains, as sometimes national action is needed to deal with externalities. Constructing a meaningful theory of federalism must be based on these values and not on unsupported assumptions. My goal in this Article is not to construct such a theory, but rather to point to what its foundation must be.

   1. THE MODELS OF FEDERALISM

      It is, of course, familiar to note that over the course of American history, the Supreme Court has shifted between two models of federalism. For the first century of American history, the Court expansively defined federal power and did not once declare a federal law unconstitutional as exceeding the scope of Congress's powers or as violating the Tenth Amendment. (9) From the late nineteenth century through 1936, the Court shifted to a very different view of federalism, narrowly defining the scope of Congress's spending power and invalidating laws as violating a zone of activities reserved to the states by the Tenth Amendment. (10) From 1937 until the early 1990s, the Court shifted back to upholding federal power; not once during this time was any law struck down for exceeding the scope of Congress's commerce power, and only once was a law found to violate the Tenth Amendment, but that case was overruled nine years later. (11) Since the early 1990s, the Court again has used federalism to limit federal powers.

      Less obvious, though, is that these varying approaches to federalism reflect two very different underlying views about the structure of American government. One, which I will call federalism as empowerment, sees the genius in having multiple levels of government and in having multiple actors to deal with social problems. If one level of government fails to require cleanup of nuclear wastes or to protect women from violence, another can step in. The benefit of having many levels of government is that there are multiple power centers capable of acting. Federal and state courts, from this view, both should be available to protect constitutional rights. Federal, state, and local legislatures should have the authority to deal with social problems, such as unsafe nuclear wastes, guns near schools, and criminals owning firearms.

      Seeing federalism as empowerment means a broad conception of Congressional power unconstrained by the concerns of federalism. Congress's power under provisions such as the Commerce Clause and Section 5 of the Fourteenth Amendment are expansively interpreted, limited primarily by the political process and the judicial protection of other parts of the Constitution, such as separation of powers and individual rights. The Tenth Amendment is not interpreted as an independent basis for invalidating federal laws.

      Seeing federalism as empowerment also means maximizing the availability of both federal and state courts to hear constitutional claims. Rather than using federalism to limit federal court authority, the empowerment view uses federalism to open the doors of both federal and state courts to those asserting federal, and especially constitutional, claims.

      Finally, viewing federalism as empowerment, rather than as limits, leads to an enhancement in state and local power. The doctrine of preemption is repeatedly used to limit actions by these levels of government in the name of federalism. Removing the shackles of federalism would produce a much more limited preemption...