Enhancing Government: Federalism for the 21st Century

The Preliminaries

• Federalism is about the allocation of power between the state and federal governments, and ensuring the best governance with the least chance of abuse.
  • National action is crucial in some circumstances (e.g., prohibiting child labor, because states that did allow child labor would have no financial incentive to prohibit it).
  • Local action is crucial in other circumstances (e.g., fire departments). 
• The text of the Constitution says virtually nothing about federalism, and provides almost no guidance on the allocation of power between the state and federal governments.
  • For example, the 10th Amendment is often used as a tool to protect state governments from supposed federal encroachment. 
    • But, the text of the 10th Amendment does not say that federal legislation is invalid just because it interferes with state prerogatives—as long as the legislation is within Congress’s authority, it is valid.
• There’s nothing inherent to federalism that makes it conservative or liberal.

SCOTUS federalism cases

Chemerinsky thinks that SCOTUS’s reasoning in federalism cases has been flawed and unsupported by solid evidence.

• SCOTUS has outlined four basic federalism values (explained below), but the justices almost never explain how a particular federal law threatens or upholds these values.
• (1) “Striking down this federal law in the name of federalism reduces the likelihood of federal tyranny.”
  • The framers viewed the separation of powers horizontally, among the branches of the federal government, and vertically, between the federal and state governments, as the best safeguard against tyranny.
  • SCOTUS decisions that struck down federal laws to “protect” states from tyranny did so in cases that seem completely unrelated to tyranny.
    • For example, in New York v. United States (505 U.S. 144), SCOTUS struck a federal law that required states to clean up nuclear waste, in part to reduce the risk of tyranny.
• (2) “Striking down this federal law in the name of federalism enhances democratic rule.”
  • Supposedly, the smaller the area governed, the more responsive the government will be to the voters, so SCOTUS struck federal laws on this basis.
    • But, the relationship between federalism and accountability is unclear, especially given the enormity of most state governments.
  • If the real issue is responsiveness, the concern should be with protecting local governments, but federalism only applies to states.
  • SCOTUS decisions, in the name of federalism, invalidated popular laws that were responsive to the public’s desires.
    • In United States v. Lopez, SCOTUS declared the Gun-Free School Zones Act—which made it a federal crime to have a gun within 1,000 feet of a school—unconstitutional; only one representative voted against the Act.
• (3) “Striking down this federal law in the name of federalism allows states to experiment.”
  • Any federal legislation that preempts (stops) state laws is a limit on state experimentation.
    • But, SCOTUS never discusses when something is worth experimenting, and has invalidated reasonable federal laws.
      • Per New York v. United States, is it worth experimenting with not cleaning up waste? Or experimenting with having guns within 1,000 feet of a school, as in United States v. Lopez?
• (4) “Striking down this federal law in the name of federalism protects liberty.”
  • SCOTUS doesn’t explain how federalism enhances liberty; SCOTUS just assumes that, on the whole, federal actions limit liberty.
  • Overall, it’s startling how rarely the federalism rulings expand the scope of rights.
    • For example, Congress, based on extensive findings and inadequate state remedies, enacted a law to expand the rights of victims of gender-motivated violence. 
      • SCOTUS invalidated the statute, restricting the rights of women throughout the country.
• Additionally, SCOTUS’s federalism decisions cannot be defended based on originalism, as there is nothing in the Constitution that speaks to it.

SCOTUS has seesawed between limiting and not limiting federal legislative power, and nearly all of the federalism decisions are analytically insufficient on six main grounds. This leads to a poor distribution of power between the federal and state governments.

• (1) SCOTUS assumes, without explanation, that the judiciary must limit Congress to protect states.
• (2) SCOTUS assumes that there is a meaningful distinction between economic and noneconomic activities in terms of Congress’s authority to regulate commerce.
  • In US v. Morrison (2000), SCOTUS concluded that Congress could not regulate noneconomic activity, such as sexual assaults, based on cumulative impact on commerce, even though Congress had made detailed findings about the national economic consequences of violence against women. 
• (3) SCOTUS assumes that federal mandates that require state governments to perform a certain action will confuse voters about whom to hold responsible—the state or the federal government.
  • This assumption is highly questionable. Everyone is used to doing things, like paying taxes, because the federal government requires it. 
• (4) SCOTUS assumes that sovereign immunity is a constitutional principle.
  • Traditionally, sovereign immunity is a state’s right to be free from lawsuits that it doesn’t consent to. 
    • Yet, the Constitution does not hint at this type of immunity.
  • Otherwise put, SCOTUS’s sovereign immunity decisions assume that governmental immunity is more important that governmental accountability.
• (5) SCOTUS assumes that the desire to protect state governments requires a broad preemption doctrine.
  • Preemption happens when a court determines that a state law conflicts with a federal law and the court strikes the state law—the state law is thus preempted.
  • SCOTUS has repeatedly found that federal laws preempt state laws, even if the federal law did not explicitly state that this should happen.
• (6) SCOTUS assumes that the social good created by a federal law doesn’t matter when it comes to determining whether the law violates principles of federalism.
  • SCOTUS invalidated laws that were socially important and even essential; some laws passed nearly unanimously in Congress (such as the Gun-Free School Zones Act at issue in Lopez).

Federalism as empowerment

Many governmental actors are equipped to deal with society’s problems and needs. If one level of government fails, another can take responsibility. For example, if states can’t clean radioactive waste, the federal government can.

Chemerinsky proposes a “federalism as empowerment” theory, with seven key guidelines to refer to when deciding how to allocate governmental power:

• (1) Commerce clause power
  • Congress, through the Commerce Clause, should be allowed to regulate any activity that it reasonably believes has an effect on commerce among the states. The effect may be found from the cumulative impact of activities, both economic and non-economic (as opposed to only economic impact, which is the current requirement).
  • This is broader than Congress’s current Commerce Clause power, which may be exercised in three circumstances:
    • The channels of interstate commerce;
    • The instrumentalities of and persons or things in interstate commerce; and
    • The activities that have a substantial effect on commerce.
• (2) Spending and taxing power
  • Congress, through the taxing and spending power, should continue to have the power to tax and spend for the general welfare, and be able to attach strings to grants at the state and local levels.
• (3) Post-Civil War power – individual rights
  • Congress’s powers, through the post-Civil War amendments (13th, 14th, and 15th Amendments), should be broadly defined in terms of which entities Congress may regulate and what laws Congress may enact.
  • SCOTUS has limited Congress’s power here; for instance, SCOTUS essentially stripped Congress of the ability to regulate private actors regarding individual rights and discrimination.
• (4) 10th Amendment
  • The 10th Amendment should be understood as allowing Congress to act only where there is constitutional authority, while states may do anything except that which is prohibited by the Constitution.
  • The 10th Amendment is currently wielded as a broad weapon to strike any federal law that compels states to adopt laws or to administer federal mandates, even though the text of the 10th Amendment does not support this type of usage.
• (5) Sovereign immunity
  • Traditionally, sovereign immunity protects state governments from suits in federal courts, state courts, and federal agencies. It isn’t a constitutional doctrine, it cannot be justified textually, and it shouldn’t be a bar to lawsuits.
    • The US government is based on the recognition that the government and its officials must be held accountable. Sovereign immunity undermines this.
  • Sovereign immunity conflicts with the Constitution:
    • It’s a common law doctrine (law that is made by the courts, not the legislature) that, in effect, trumps the Constitution and federal laws.
    • It allows the government to violate the Constitution without accountability.
• (6) Power of choice for litigants
  • There has been a lengthy (and relatively unproductive) discussion about whether federal courts are better at protecting constitutional rights than state courts are. Normally, a lawsuit about a constitutional violation can only go to federal court.
    • State courts differ greatly from one another, as do federal courts, but state courts seem as equally equipped and willing to protect constitutional rights as federal courts.
  • Currently, jurisdictional rules determine which courts litigants may use.
    • Instead, individuals with constitutional claims should be able to choose whether to litigate in federal or state court. 
    • This way, federalism expands, rather than limits, power, because all levels of courts would be available to vindicate constitutional claims.
    • This fosters a respect for individual dignity.
    • And, when federal and state courts have concurrent jurisdiction, they will compete with each other in the protection of individual liberties.
• (7) The power of narrowly defined preemption
  • Preemption, generally: If there is a conflict between federal and state law, the federal law wins and the state law is preempted (stopped). Preemption, like federalism, is about how to allocate authority between the federal and state governments.
  • Sometimes, courts will look at things like Congressional intent to determine if there’s a conflict between state and federal law, which becomes a highly subjective enterprise.
    • And, the Court’s recent preemption decisions have been highly political. 
    • SCOTUS has stricken state laws—regulating influential corporate lobbies like big tobacco, the auto industry, and insurance—by stating that certain federal laws preempt the state laws, even though it is not explicitly clear that the federal laws actually do so.
  • Courts should find preemption only when (1) a law expressly preempts state and local action, or (2) if there is a direct conflict between federal and state law.
    • This empowers state and local governments to act more freely, but also preserves Congress’s ability to preempt local regulation when national uniformity is necessary.
• Together, these factors empower Congress and states to address different social issues more effectively.
  • And, because the Constitution does not say anything about federalism, and because SCOTUS’s federalism cases have varied wildly, Chemerinsky’s “federalism as empowerment” theory is thus entirely possible.

• Addressing potential objections to his “federalism as empowerment” 
• An analysis of the Solimine-Walker investigation, which attempted to quantitatively compare constitutional rulings by federal and state courts
• Why traditional arguments for federal court superiority, as compared to state courts, are unsatisfying and not supported by evidence
• Deep, thorough analyses of multiple SCOTUS cases regarding federalism, sovereign immunity, and preemption
• Why SCOTUS used federalism to limit the federal judiciary’s power but not Congress’s legislative power
• A section on why originalism is not a persuasive basis for federalism
• How SCOTUS used federalism to severely restrict the federal judiciary in Erie v. Thompson