The U.S. Supreme Court and Federalism in the Twenty-first Century

Published date01 September 2017
Date01 September 2017
Subject MatterArticles
SLG747015 215..228 Article
State and Local Government Review
2017, Vol. 49(3) 215-228
The U.S. Supreme Court
ª The Author(s) 2017
Reprints and permission:
and Federalism in the
DOI: 10.1177/0160323X17747015
Twenty-first Century
John Dinan1
This article analyzes the U.S. Supreme Court’s record in twenty-first-century federalism cases and
compares these rulings with rulings issued in the late twentieth century, a time when the Court was
aggressive in invalidating federal acts on federalism grounds and reluctant to limit state authority
when reviewing state acts. The twenty-first-century Court has displayed a continued willingness to
enforce limits on federal power when reviewing federal statutes but has been less willing than in
recent years to sustain state laws with an eye to preserving state autonomy.
Supreme Court, federalism, constitution
U.S. Supreme Court rulings can influence the
sustained federal power in these cases (Somin
balance of federal and state government authority
2017). The Court in the final decade of the
in two main ways. In one set of cases, the Court
twentieth century was also more willing than its
has a choice of limiting or sustaining federal
predecessors to sustain state autonomy when
power in litigation challenging the legitimacy or
interpreting various provisions of the bill of
requiring interpretation of congressional statutes,
rights (Dinan 1999, 174–77). Building on stud-
presidential actions, or federal agency regula-
ies of federalism decisions issued in recent
tions. A second set of cases features challenges
years (Shortell 2012; Banks and Blakeman
to the legitimacy of state laws and gives the Court
2012; Banks and Blakeman forthcoming;
an opportunity to limit or sustain state authority.
Somin 2016), this article assesses the degree
This article assesses the extent to which
to which the Court in the twenty-first century
twenty-first-century rulings regarding the
has followed or departed from late twentieth-
legitimacy of federal and state laws have main-
century rulings.
tained, expanded on, or retreated from rulings
issued in the final decade of the twentieth cen-
tury. During a decadelong period from 1992 to
1 Department of Politics and International Affairs, Wake
2002, the Rehnquist Court relied on various
Forest University, Winston-Salem, NC, USA
constitutional provisions to impose limits on
federal authority (Conlan and Vergniolle de
Corresponding Author:
John Dinan, Department of Politics and International
Chantal 2001; Wise 2001; Goodman 2001;
Affairs, Wake Forest University, 305 Kirby Hall, Winston-
Pickerill and Clayton 2004; Dinan 2011), after
Salem, NC 27109, USA.
more than a half century when the Court largely

State and Local Government Review 49(3)
Given the significant number and wide
to the Commerce Power, Tenth Amendment,
range of Supreme Court cases with implica-
Eleventh Amendment, and post–Civil War
tions for federalism, decisions have to be made
Amendments, the Rehnquist Court relied on
to focus the analysis on selected areas of case
each of these constitutional provisions to limit
law. The first section of the article examines
federal power in rulings issued from 1992 to
four constitutional provisions that have been
2002. In U.S. v. Lopez, 514 U.S. 549 (1995),
relied on to limit the reach of federal authority:
and U.S. v. Morrison, 529 U.S. 528 (2000), the
the Tenth Amendment, Eleventh Amendment,
Court held that there were limits to Congress’s
commerce power, and spending power. There
authority under the commerce power when reg-
are, to be sure, other cases where the Court has
ulating noncommercial activity. In New York v.
an opportunity to sustain or limit the exercise of
U.S., 505 U.S. 144 (1992), and Printz v. U.S.,
federal power; but these constitutional provi-
521 U.S. 898 (1997), the Court relied on the
sions have figured prominently in federalism
Tenth Amendment in ruling that Congress can-
jurisprudence in recent decades.
not commandeer state and local officials by
The second section examines four constitu-
pressing them into the service of administering
tional provisions or doctrines that have tradi-
federal policy. The Court invoked the Eleventh
tionally been responsible for generating
Amendment in limiting congressional power to
decisions limiting state autonomy: the incor-
authorize private lawsuits against state govern-
poration doctrine whereby provisions of the bill
ments in Seminole Tribe v. Florida, 517 U.S. 44
of rights are applied to the states, the Four-
(1996); Florida Prepaid v. College Savings
teenth Amendment’s due process clause as
Bank, 527 U.S. 628 (1999); College Savings
applied to personal autonomy, the Eighth
Bank v. Florida Prepaid, 527 U.S. 666
Amendment’s ban on cruel and unusual punish-
(1999); Alden v. Maine, 527 U.S. 706 (1999);
ment, and the preemption doctrine. Once again,
Kimel v. Florida, 528 U.S. 62 (2000); Alabama
focusing on these areas necessarily leaves aside
v. Garrett, 531 U.S. 356 (2001); and Federal
other cases with implications for the scope of
Maritime Commission v. South Carolina State
state authority, but rulings in these areas have
Ports Authority, 535 U.S. 743 (2002). Finally,
historically been important vehicles for centra-
in several of the aforementioned cases as well
lization of power and are suitable for analysis.
as several other cases where the Court was
The purpose in both sections is to identify
asked to interpret the Fourteenth Amendment’s
ways that the Court in twenty-first-century rul-
enforcement power in an expansive fashion, a
ings has maintained or advanced or retreated
majority of the Court declined to do so, most
from doctrinal principles that guided late
notably in Boerne v. Flores, 521 U.S. 507
twentieth-century rulings. Such an analysis is
of interest to public law scholars who have
The purpose of this section is to determine
debated whether federalism rulings issued in
whether the Court has continued to enforce lim-
the 1990s are anomalous or rather signaled a
its on federal power via these constitutional
renewed commitment to enforcing limits on
provisions. To what extent have twenty-first-
federal power. The analysis also has some
century rulings maintained, retreated from, or
implications for scholars and practitioners of
expanded on doctrines that animated late
state politics who are interested in the conse-
twentieth-century rulings? The focus is on rul-
quences of Supreme Court decisions for the
ings regarding the extent and limits of congres-
scope of state authority.
Amendment, Eleventh Amendment, commerce
power, and spending power.
Limiting Federal Authority
Focusing on these particular constitutional
After a period from the late 1930s to the late
provisions necessarily leaves aside other con-
1980s when the Court was generally unwilling
stitutional rulings with federalism implications.
to enforce limits on federal authority pursuant
These include rulings relying on the necessary

and proper clause to sustain congressional
1990s’ decisions concerning the commerce
authority, as in U.S. v. Comstock, 560 U.S.
power, but neither has the Court retreated from
126 (2010), which sustained a statute authoriz-
these commerce power precedents. Finally, the
ing a federal court to order the confinement
twenty-first-century Court has gone beyond
of mentally ill, sexually dangerous prisoners
decisions issued by prior Courts in enforcing
past the term of their sentence, and U.S.
limits on congressional authority pursuant to
v. Kebodeaux, 133 S. Ct. 2496 (2013), which
the spending power.
upheld the Sex Offender Notification and
Registration Act.
State Sovereign Immunity
The decision to focus on constitutional chal-
lenges to federal statutes also leaves aside var-
After handing down a number of decisions lim-
ious cases of statutory interpretation. In several
iting congressional power to abrogate state
recent cases, including Endrew F. v. Douglas
sovereign immunity from 1996 to 2002, the
County School District, 580 U.S. ___ (2017),
Supreme Court issued few notable rulings in
the Court has been called on to interpret the
this area during the remainder of the first
Individuals with Disabilities Education Act
decade of the twenty-first century. In fact, sev-
(IDEA), and in particular the requirement that
eral decisions issued in the final years of the
states craft an “individualized education
Rehnquist Court and the first year of the
program” that provides each student a “free
Roberts Court signaled a possible retreat from
appropriate public education.” Meanwhile, the
the implications of rulings issued during the
Court has had various occasions to interpret
1990s. However, any indication that the Court
environmental statutes, especially the Clean
was no longer prepared to interpret the Ele-
Air Act, and determine whether the Environ-
venth Amendment in the way that had been
mental Protection Agency is acting properly
done in the 1990s was put to rest by several rul-
by failing to issue certain regulations, as in
ings in the 2010s, limiting congressional power
Massachusetts v. EPA, 549 U.S. 497 (2007),
to authorize private suits against state
or has undertaken a proper cost–benefit analy-
sis when it has issued regulations as in Michi-
The Court’s initial unwillingness to expand
gan v. EPA, 135 S. Ct. 2699 (2015). The
the implications of earlier Eleventh...

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