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Redefining Federalism: In the Balance

The New Republic Online
July 5, 2005
Douglas T. Kendall and Jennifer Bradley
Special to TNR.com

The Supreme Court vacancy that opened up with the surprise retirement of Sandra Day O'Connor has already started a battle over the fate of some of the defining principles of the Rehnquist Court. One of those core principles, and one that some commentators have already declared endangered, is federalism, defined by the Court as a brake on the power of the federal government to protect areas of exclusive state sovereignty. After the decision in Gonzales v. Raich, which upheld the federal government's Commerce Clause authority to seize home-grown, freely exchanged, state-sanctioned medical marijuana, it may have appeared that federalism was in retreat.

But perhaps the Court is not backing away from federalism; perhaps it's reshaping it. Looking at Raich in conjunction with Bates v. Dow Agrosciences, an important Supremacy Clause case, and a line of cases under the Takings Clause (full disclosure: our law firm filed amicus briefs in three takings cases this term, plus Raich) there is evidence that the Court is moving away from federalism as an ideological weapon and towards federalism as a neutral principle.

The key to making sense of the Court's federalism decisions is the states. For years in Supreme Court briefs, the states have told the Court that it protects federalism too much by striking down, often over the objection of the states, laws that address national problems--and that it protects federalism too little, by aggressively striking down state laws based on dubious readings of the Supremacy or Dormant Commerce clauses. Now, a decade after the beginning of the federalism revival, it seems that the Court is finally starting to listen.

The best example is Bates v. Dow Agrosciences, a case dealing with pesticides decided in April. Every member of the Court agreed that a manufacturer's compliance with federal pesticide labeling requirements does not automatically immunize it from suits based on state laws. Throughout the Court's federalism revival, the states have been forcefully arguing--to no avail until now--that if the Court is serious about protecting federalism it needs to significantly revise Court-created preemption doctrines, which result in the invalidation of state and local laws even when the interference with federal objectives is far from clear. These arguments in the past have drawn support only in dissents joined consistently by the odd threesome of Justices Stevens, Ginsburg, and Thomas. These justices have called for the Court to jettison its free-ranging inquiry into whether to find implied preemption of state law in a federal statute because state law represents an obstacle to federal objectives. In Bates, there is evidence that a majority on the Court is now convinced that changes to preemption doctrines are necessary.

The federalism principle recognized in Bates is that the Court should first "do no harm." A Court that wants to defend the important role of states in our federal structure should begin by eliminating Court-created doctrines that result in invalidation of state and local initiatives without clear evidence of interference with federal objectives.

A similar point could be made about the Court's takings cases this term. These cases, Chevron v. Lingle, San Remo v. San Francisco, and Kelo v. New London, are not, strictly speaking, federalism cases, because the Takings Clause--like other provisions of the Bill of Rights--is not about the division of government power, but rather a check on all governments equally. The Takings Clause says that a government can take private property if it is for a public purpose and if it provides the owner with just compensation. Most takings cases consider whether a land use regulation is so burdensome that it amounts to a taking of a person's property, requiring just compensation. A few cases ask whether a taking of property is actually for public purposes (as in Kelo). Since state and local governments make most land use regulations and are involved in most land condemnations, the burden of a broad construction of the Takings Clause falls disproportionately on these governments, and the Court has in the past imposed barriers on state and local innovation that were not justified by the text or history of the Constitution.

This term's takings rulings, in contrast to cases from the late 1980s and early '90s, all supported state and local experimentation. In Lingle the court upheld a Hawaii rent control statute for gas stations enacted in part as a response to Hawaii's unique geographic and market circumstances. San Remo preserved the integrity of state courts in takings cases and turned back the effort to make federal courts into zoning appeal boards with fancier trappings. Finally, in Kelo, the Court "decline[d] to second-guess" both New London's decision about the wisdom of its plan to reverse its decades-long economic decline and the way it chose to implement that plan.

Which brings us to Raich. For the sometimes abstruse purposes of constitutional analysis, Raich was not a case like Bates about whether state and federal laws were compatible or conflicting (so-called preemption cases). Instead, Raich was about the extent of Congressional power under the Constitution. The Court upheld federal regulation of private, intrastate, non-commercial cultivation and possession of relatively small amounts of marijuana intended for medicinal use. (Technically, it did not overturn the California law allowing medical marijuana.) Raich thus represented a serious blow to any effort to define federalism in a way that reserves large spheres of activity exclusively to the authority of the states. One might expect that the states would have pleaded with the Supreme Court to keep the heavy hand of the federal government's drug-enforcement bureaucracy out of state business. And indeed, six states--Alabama, Louisiana, Mississippi, California, Maryland, and Washington--did make such a request.

But the silence of the other 44 states, and the absence from the case of all the major associations representing state and local governments, reflects states' longstanding ambivalence about Court rulings that prevent the federal government from participating in problems that are truly national. In some cases, states have wholeheartedly supported federal involvement. For example, 36 states in United States v. Morrison argued in favor of broad federal authority under the Violence Against Women Act (VAWA). The states explained that the VAWA did not undermine, but rather complemented, state efforts to control violence against women, and admitted that the states had been unable to address the problem adequately on their own, so needed federal help. The states' arguments did not prevail, leading Justice Souter in dissent to quip that "[i]t is, then, not the least irony of these cases that the [s]tates will be forced to enjoy this new federalism whether they want it or not."

Raich was less a blow to state sovereignty than an endorsement of a federal government that has the power to solve problems that bedevil all states. A loss for the federal government in the case would have constricted Congress's power under the Commerce Clause--and thus would have undermined, perhaps fatally, other laws based on the Commerce Clause, such as those protecting civil rights and the environment. We think few states would approve of such an outcome.

Instead, states have a vision of federalism as a neutral principle, not a zero-sum game or a forced choice between national authority and state and local experimentation. Like so many other aspects of our constitutional system, federalism requires a careful balance between the prerogatives of different levels of government. This term the Court has struck that balance more often than not.

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DOUGLAS T. KENDALL is Executive Director of Community Rights Counsel, a public interest law firm that filed amicus briefs in support of state and local governments in Lingle, San Remo, and Kelo and for the federal government in Raich. JENNIFER BRADLEY is Federalism Project Director at Community Rights Counsel.

Copyright 2005 © The New Republic Online. All Rights Reserved.

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To read about how federalism concerns are playing out in the debate about policy responses to global warming, please visit our blog, www.warminglaw.com

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