The Supreme Court's New Constitutional Federalism: Implications for Public Administration

• DOI: http://doi.org/10.1111/0033-3352.00035
• Published date: 01 May 2001
• Date: 01 May 2001

The Supreme Court’s New Constitutional Federalism 343

Charles R. Wise

Indiana University

The Supreme Court’s New Constitutional

Federalism: Implications for Public Administration

Since the early 1990s, the Supreme Court has been issuing decisions that, taken together, consti-

tute a new judicial federalism. This effort is rearranging intergovernmental relations as we have

known them for several decades. However, the boundaries of this new doctrine and its implica-

tions for public administration are not well understood. This article analyzes the principal constitu-

tional bases for the Court’s actions and gauges the balance of this new judicial federalism. It then

sorts out the implications for public administration and projects where the Court may be going

with this doctrine in the future.

Charles R. Wise is a professor of public affairs in the School of Public and

Environmental Affairs at Indiana University. He is the former managing edi-

tor of the

Public Administration Review

, and he has received the William E.

Mosher and Frederick C. Mosher Award for best academic article in

PAR

three times. Email: wise@indiana.edu.

In recent years, the United States Supreme Court has

re-entered an arena that many thought that it had aban-

doned—interpreting the Constitution for what it says about

the respective powers of the federal government and the

states (Cooper 1988; Van Alstyne 1985). This new judicial

federalism has signaled a shift in the legal basis of inter-

governmental relations, and thus a shift in the environment

of public administration as well (Dinan 1998; Prakash

1993; Rosenbloom and Ross 1998; Wise 1998). The latest

pronouncements by the Supreme Court in cases in which

federalism was the major focus suggest that a majority of

the justices are determined to fill out their federalism doc-

trine. This activist federalism stance stands in marked con-

trast to the posture of the Court from the middle 1930s

through the late 1980s. Of particular significance are the

explicit pronouncements of the Court in several cases in

the 1990s, which avowed that the Court would serve as a

conscious arbiter of the respective powers of the national

government and the states.

What are the limits on the exercise of national power,

and what are the implications for state autonomy? Further,

has the Supreme Court now moved from a position where

it consistently upheld assertions of national authority to

one where it consistently strikes them down? In short,

where does the balance lie?

In order to examine these issues, cases in which the main

issues of federalism were at stake will be analyzed. It ap-

pears that the Court’s developing federalist stance with

respect to the protection of state autonomy can be read as

both more and less: While the Court has acted to limit the

reach of federal power and to protect state prerogatives

with greater frequency in some areas, it has confirmed fed-

eral expansion in others. If we focus only on cases pro-

nouncing some limit on the expansion of federal power, it

is easy to overlook areas in which the Court has confirmed

the new exercises of federal power, not to mention its con-

tinuing acceptance of the accumulation of federal powers

over the last five decades. A fuller picture comes into fo-

cus when we examine the various bases for the exercise of

federal power and what the Court has said about them.

The Commerce Clause and the Scope of

Federal Authority

The Commerce Clause1 has long been the primary basis

of Congress’s regulatory legislation. As Justice Frankfurter

pointed out long ago, the Court’s Commerce Clause cases

have been the chief source of adjudications regarding fed-

eralism. In recent years, the Supreme Court has made some

significant interpretations of Congress’s Commerce Clause

authority that have had major implications for federalism.

Prior to 1937, the Supreme Court had struck down a string

of statutes on the grounds they exceeded Congress’s pow-

ers under the Commerce Clause. However, in a series of

decisions beginning with NLRB v. Jones and Laughlin (301

U.S. 1 [1937]) and culminating with Wickard v. Filburn

344 Public Administration Review •May/June 2001, Vol. 61, No. 3

(317 U.S. 111 [1942], the Court withdrew the full range of

limits on federal power to regulate what its earlier judg-

ments had constructed. These decisions essentially ended

judicially enforceable limits in the most important feder-

alism domains (Lessig 1995, 153). The result has been a

continually expanding reach of federal regulatory power.

Cases the Supreme Court did take that challenged federal

power under the Commerce Clause were decided in favor

of the federal government, leading many to wonder if the

Court would recognize any limits on federal power. In fact,

a leading constitutional legal scholar observed in the late

1980s: “Contemporary commerce clause doctrine grants

Congress such broad power that judicial review of the af-

firmative authorization for congressional action is largely

a formality” (Tribe 1988, 316). Beginning in the mid-1990s,

this began to change.

Building on its pronouncement in Garcia v. San Anto-

nio Metropolitan Transportation Authority (469 U.S. 556

[1984]), in which it found the principal limit on the Com-

merce power to regulate state functions to be state partici-

pation in the legislative process of Congress, in Gregory v.

Ashcroft (111 S.Ct. 2395 [1991]) the Court said it must be

absolutely certain that Congress intended to use its Com-

merce Clause powers to intrude into areas previously regu-

lated by the states (111 S.Ct. 4718 [1991]). Thus, the Court

said that, in the face of ambiguity in a statute, it would not

under the Commerce Clause “attribute to Congress an in-

tent to intrude on state governmental functions” (111 S.Ct.

4719 [1991]) (see Wise and O’Leary 1992, 570). This

meant the Court would require Congress to include a plain

statement in the statutes it passed, indicating that it meant

to insert federal authority into an area previously left to

the states to regulate on their own. The significance of this

is that it bars individuals and groups who wish to use fed-

eral statutes of general applicability adopted under the

Commerce Clause to attack state regulation in federal court

from doing so, unless Congress makes it clear that the stat-

ute applies to the states. This went part way in preserving

some space for state regulatory action.

In United States v. Lopez (115 S. Ct. 1624 [1995]), the

Court went further and struck down the Gun Free School

Zones Act, on the grounds that it exceeded Congress’s pow-

ers under the Commerce Clause. The act made it a federal

offense for “any individual to possess a firearm at a place

[he] knows … is a school zone” (18 U.S.C. @922 (q)(1)(A)

[1998 ed., Supp. V]). The majority opinion stated that

Congress’s power to regulate in such cases should be sus-

tained, if it could be shown that the activity to be regulated

“substantially affects” interstate commerce (115 S. Ct.

1640, [1995]). The majority, however, found no evidence

that carrying guns in school zones “substantially affected”

interstate commerce. They also noted that under our fed-

eral system, the states possess primary authority for defin-

ing and enforcing the criminal law (115 S. Ct.1646, note

3, [1995]). The Court did not accept the government’s rea-

soning that possessing a firearm in a school zone substan-

tially affects interstate commerce because of the costs of

crime. This, the Court thought, would eliminate all mean-

ing from the concept of Congress being limited to “enu-

merated powers” and would assign to Congress a plenary

police power (115 S.Ct. 1656 [1995]).

The Court followed up its decision in Lopez with United

States v. Morrison, (120 S.Ct. 1740 [2000]), in which it

struck down 42 U.S.C. sec. 13981, a part of the Violence

Against Women Act. The section provides a federal civil

remedy against persons who commit crimes of violence

motivated by gender. Congress explicitly identified the

sources of federal authority on which it relied as the Com-

merce Clause and Section 5 of the Fourteenth Amendment.

With respect to the Commerce Clause, the Court re-

viewed its reasoning in Lopez and found that sec. 13981

failed to pass the “substantially affects interstate com-

merce” test, on several grounds. First, the Court found that

gender-motivated crimes of violence are not, in any sense

of the phrase, economic activity (120 S.Ct. 1751 [2000]).

Second, it found the provision contained no jurisdictional

element establishing that the federal cause of action is in

pursuance of Congress’s power to regulate interstate com-

merce. Instead, Congress had cast the remedy over a wider,

and purely intrastate, body of violent crime (120 S.Ct. 1752

[2000]). Third, although Congress had supported the pro-

vision with numerous findings regarding the serious im-

pact that gender-motivated violence has on victims and their

families, the Court stated that the existence of findings is

not sufficient by itself to sustain the constitutionality of

Commerce Clause legislation. The Constitution, the Court

observed, requires a distinction between what is national

and what is truly local, and the regulation and punishment

of intrastate violence that is not directed at the instrumen-

talities, channels, or goods involved in interstate commerce

has always been the province of the states (120 S.Ct. 1752

[2000]). The Court noted in a footnote that another section

of the act, section 4022(a), creates a federal criminal rem-

edy to punish interstate crimes of abuse, including crimes

committed against spouses or intimate partners, and the

courts of appeals have uniformly upheld this criminal sanc-

tion as an appropriate exercise of Congress’s Commerce

Clause authority (120 S.Ct. 1752 [2000]). The Court’s find-

ings on the Fourteenth Amendment basis for the provision

will be discussed later in this article.

Thus, the Court made it clear it would continue to exer-

cise its judgment concerning the proper scope of Congress’s

regulatory power under the Commerce Clause. Those seek-

ing for Congress to enact new regulatory schemes cannot

assume the Court’s unquestioning deference. While there

is plenty of room to question the standards the Court uses