Federalism - Supreme Court Tilting Toward States' Rights? (2023)

Introduction The U.S. Constitution establishes a system of federalism that allocates power, authority, and sovereignty between the federal government at the national level and its constituent units at the state and local levels. However, nowhere in the Constitution does the word federalism appear, so the term remained undefined. Nonetheless, Articles I through III expressly delegate certain powers to the three branches of the federal government, while the TENTH AMENDMENT expressly reserves to the states those powers not delegated to the federal government. The EQUAL PROTECTION and DUE PROCESS Clauses of the FOURTEENTH AMENDMENT have been interpreted to make most of the BILL OF RIGHTS applicable to the states, while the NINTH AMENDMENT preserves for "the people" those rights not enumerated in the Constitution.

So while the term federalism is nowhere to be found in the text of the U.S. Constitution, the principles underlying this theory of government are deeply embedded throughout the national charter. The Framers left it for subsequent generations of Americans to work out the details, allowing them, in effect, to provide their own definition of federalism in what best can be described as an ongoing national dialogue. Over the last 200 plus years, Americans have carried out this dialogue by speaking to each other through their state and federal institutions and by amending the Constitution as a last resort.

The most visible federal institutions participating in this national dialogue have been the U.S. Supreme Court and Congress. Typically, cases involving federalism-related issues have come before the Supreme Court after Congress has enacted a law that a state believes encroaches on its sovereignty. Until the late twentieth century, the Supreme Court leaned heavily in favor of allocating power to Congress at the expense of state sovereignty, and not surprisingly the states often took issue. But from 1993 to 2003, the jurisprudential pendulum of the Supreme Court took a very noticeable swing back in favor of STATES' RIGHTS. To understand just how pronounced this swing has been, it is important to place a spate of Supreme Court cases in historical context.

The First 200 Years of Federalism in the United States In CHISHOLM V. GEORGIA, 2 U.S. 419, 2 Dall. 419, 1 L.Ed. 440 (U.S. 1793), the Supreme Court ruled that Article III of the federal Constitution gives the Court original jurisdiction over lawsuits between a state government and the citizens of another state, even if the state being sued does not consent. The decision generated immediate opposition from 12 states, and led to the ratification of the ELEVENTH AMENDMENT, which gives states SOVEREIGN IMMUNITY from being sued in federal court by citizens of other states without the consent of the state being sued. Thirty-eight years later the Court again overstepped its bounds when it invalidated a Georgia state law regulating Cherokee Indian lands on the grounds that the law violated several U.S. treaties. Georgia ignored the Supreme Court's decision, and President ANDREW JACKSON, an ardent states' rights proponent, refused to deploy federal troops to enforce the Court's order. Cherokee Nation v. Georgia, 30 U.S. 1, 5 Pet. 1, 8 L.Ed. 25 (U.S. 1831).

Allocation of power to the federal government probably reached its zenith under the Supreme Court's expansive interpretation of congressional lawmaking power exercised pursuant to the COMMERCE CLAUSE, which gives Congress authority to regulate matters affecting interstate commerce. In GIBBONS V. OGDEN, 22 U.S. 1, 6 L.Ed. 23, 9 Wheat. 1(U.S. 1824), the Supreme Court ruled that the Commerce Clause power of Congress is "supreme, unlimited, and plenary," acknowledging "no limitations, other than those prescribed in the Constitution." More than a hundred years later Congress applied this plenary power to regulate a farmer's personal consumption of his own privately grown wheat because Congress had found that the effects of such use, when aggregated with that of other farmers, would have a substantial effect on prices in the national wheat market. The Supreme Court ruled that Congress had not exceeded the bounds of its authority under the Commerce Clause. Wickard v. Filburn, 317U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (U.S. 1942).

The Supreme Court deviated from its pattern of enlarging the powers of the federal government in decisions involving race relations. In DRED SCOTT V. SANDFORD, 60 U.S. 393, 19 How. 393, 15L.Ed. 691 (U.S. 1856), the Court invalidated the Missouri Compromise, a federal law that outlawed SLAVERY in the northern Louisiana Territory, on the grounds that under the Constitution Congress was intended "to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from [it]." This decision exacerbated the antagonism between the slave-holding states, the free states, and the territories, antagonism that eventually culminated in the U.S. CIVIL WAR. Similarly, the Supreme Court deferred to local lawmakers in PLESSY V. FERGUSON, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256(U.S. 1896), which upheld the constitutionality of JIM CROW LAWS that had created a legal regime of racial SEGREGATION in the South.

Federalism Since 1990 Beginning in the 1990s, however, the Supreme Court began revisiting the relationship between the state and federal governments on issues other than race-relations. In New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (U.S.1992), the state of New York brought a suit challenging parts of the Low-Level Radioactive Waste Policy Amendments Act. 42 U.S.C.A. § 2021e(d)(2)(C). The Supreme Court held that the act's "take title" provision, which required states either to regulate low-level radioactive waste according to congressional regulations or to take ownership of the waste, was unconstitutional. The Court reasoned that the "take title" provision was outside the authority delegated to Congress under the Constitution and that the regulation was an attempt to "compel the States to enact or administer a federal regulatory program." Such attempts to compel state behavior, the Court said, violate the federal structure of the government as embodied in the Tenth Amendment.

Three years later the Supreme Court invalidated the Gun-Free School Zones Act in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (U.S.1995). The act had made it a federal offense for any individual to knowingly possess a firearm in a place that the individual knows or has reasonable cause to believe is a school zone. 18 U.S.C. § 922(q). Without explicitly overruling Wickard v. Filburn, the Court ruled that Congress exceeded its authority under the Commerce Clause, since possession of gun in a local school zone was not economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce, and the statute contained no jurisdictional element to ensure, through a case-by-case inquiry, that possession of firearm had any concrete tie to interstate commerce.

In Printz v. United States, 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914(U.S. 1997), a sheriff sought to enjoin provisions of the Brady Handgun Violence Prevention Act. Pub.L. 103-159, 107 Stat. 1536. The act established a system of national instant background checks. Local authorities were required to participate in the system by performing background checks on behalf of the federal government. The Supreme Court ruled that Congress had no authority under the Commerce Clause to enlist local authorities to enforce the provisions of a federal law.

That same year the Supreme Court continued chipping away at Congressional power in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134L.Ed.2d 252 (U.S. 1997), a case in which an Indian tribe filed suit against Florida to compel the state to negotiate under the federal Indian Gambling Regulatory Act. 25 U.S.C. § 2710(d)(7). The act required states to negotiate in GOOD FAITH towards the creation of a compact between the tribe and the state allowing for certain gambling activities. States could be sued in federal court for violating the act and compelled by federal courts to comply with its mandates. The Supreme Court found that, while Congress intended to abrogate the states' sovereign immunity in the statute, the "Eleventh Amendment prohibits Congress from making the states capable of being sued in federal court."

Scholars, historians, and other commentators disagree over the long-term impact of the Court's recent decisions that revisit the concept of federalism. New York Times Supreme Court reporter Linda Greenhouse responded to several of the federalism-related decisions by opining that "it is only a slight exaggeration to say that … the Court [is] a single vote shy of reinstalling the Articles of Confederation." Joseph Biden (D-Del.) took to the Senate floor to proclaim that "the imperialist course upon which the Court has embarked constitutes a danger to our established system of government."

Other commentators contend that these decisions are likely to have minimal lasting effect. Congress has at its disposal, these commentators argue, a variety of mechanisms by which it can blunt the effects of these rulings. For example, Congress can fund studies that will offer proof that the subject matter of proposed federal laws intimately touch upon interstate commerce, thereby defeating in advance any arguments to the contrary. In the wake of the September 11, 2001, terrorist attacks in New York City and Washington, D.C., other commentators have predicted that the pendulum of federalism would swing in the other direction to allow the federal government to more adequately address concerns over homeland security.

Amid these competing views over the Court's direction, one thing remains certain: each year the court is asked to review an increasing number of decisions relating in one way or another to federalism. Sometimes the Court can influence the balance of power between the state and federal governments even by declining to grant certiorari. For example, in December 2002 the Court refused to intervene after the New Jersey Supreme Court allowed Democrat Frank Lautenberg to replace U.S. Senator Robert Torricelli on the fall ballot, even though the state's legal deadline had passed. Forrester v. New Jersey Democratic Party, Inc., ___ U.S. ___, 123 S.Ct. 673, 154 L. Ed. 2d 582 (2002). By declining review, the Court allowed the state leeway in interpreting its own laws. Such "federalism" issues are bound to resurface in other cases, including one that had not yet reached the court: Attorney General JOHN ASHCROFT's bid to prosecute doctors assisting in suicides under Oregon law. Oregon v. Ashcroft, 192F.Supp.2d 1077 (D.Or. 2002).