Article III of the Constitution provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The “Madisonian Compromise” embodied in that language resolved a dispute at the Philadelphia Convention of 1787 over the extent to which the new national government should have a complete judicial system of its own, with the potential to eclipse the state courts in importance. The compromise punted the question of lower federal courts to Congress, but most seem to have agreed that the union would be ineffectual without a supreme judicial tribunal. In that role, the U.S. Supreme Court has at various times discharged both a centralizing and decentralizing function: it has enforced the uniformity and supremacy of federal law against centrifugal tendencies in the states, while also exerting some degree of check on the centralizing impulses of the national Congress and executive.
The Court played primarily a centralizing role under the chief justiceship of John Marshall. McCulloch v. Maryland (1819) established a broad construction of Congress’s powers vis-à-vis the states, while Gibbons v. Ogden (1824) laid the groundwork for an aggressive judicial role limiting state legislation under the “dormant” or “negative” Commerce Clause. Dartmouth College v. Woodward (1819) and Fletcher v. Peck (1810) employed the Contract Clause as another basis for reviewing state regulation. And Martin v. Hunter’s Lessee (1816) and Cohens v. Virginia (1821) critically established the Court’s supremacy, in matters involving federal law, over the state judiciaries.
|ARTICLE III, SECTION 1|
|The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.|
The Court’s decentralizing potential emerged after the Civil War, with restrictive interpretations of the Reconstruction Amendments in the Slaughterhouse Cases (1873) and Civil Rights Cases (1883), and broad constructions of state sovereign immunity in state bond cases. Around the turn of the century, the Court likewise began to limit the reach of Congress’s authority under the Commerce Clause in cases such as United States v. E. C. Knight Company (1895) and Hammer v. Dagenhart (1918). (It is questionable how much these decisions “protected” state autonomy, because at the same time the Court was cutting back on state regulatory authority under the Due Process Clause in cases like Lochner v. New York 1905.)
In the 1930s, this restrictive Commerce Clause jurisprudence led to a confrontation between the Court, on the one hand, and the president and Congress, on the other, over the legitimacy of the New Deal. It is unclear whether the Court ultimately bowed to the political pressure of President Franklin D. Roosevelt’s “court-packing” plan or simply chose one strand of its case law over another; what is clear is that the Court shifted course on federalism issues in 1937. In National Labor Relations Board v. Jones and Laughlin Steel Corporation (1937), the Court took a far broader view of Congress’s authority, and it confirmed that view even more dramatically in subsequent cases like United States v. Darby (1941) and Wickard v. Filburn (1942). When the latter case upheld Congress’s authority to regulate a single farmer’s production of small quantities of wheat for consumption on his farm (rather than for sale), it seemed that there was nothing outside the reach of national authority.
The Warren Court largely confirmed that impression in the 1950s and 1960s, upholding a very broad notion of congressional authority in cases like Heart of Atlanta Motel v. United States (1964) and Katzenbach v. McClung (1964). That Court also affirmed Congress’s authority to regulate the institutions of state government directly in Maryland v. Wirtz (1968), and it seemed even to defer to Congress’s interpretation of the Constitution itself in Katzenbach v. Morgan (1966). The Warren Court’s greatest impact on the federal balance, however, came not in cases construing the breadth of Congress’s powers, but rather in Fourteenth Amendment cases that invalidated state legislation in the name of individual rights. Brown v. Board of Education (1954) uprooted basic structures of racial oppression entrenched throughout much of the nation, and it was resisted primarily in the name of “states’ rights.” And the Warren Court’s string of landmark criminal procedure and habeas corpus rulings effected a parallel revolution in the practice of state legal systems.
The Burger Court retreated from some of its predecessor’s more aggressive rulings, but without calling into question the Warren Court’s basic vision of broad national legislative authority or extensive individual rights enforceable against the states. The Burger Court’s most visible effort to restrict federal power—its ruling in National League of Cities v. Usery (1976) that Congress may not regulate state governmental institutions performing “traditional state functions”—was overruled just nine years later in ;Garcia v. San Antonio Metropolitan Transit Authority (1985). And the Court continued to identify fundamental rights that preempted state policy, the most important being the right to abortion identified in Roe v. Wade (1973).
The Rehnquist Court, by contrast, has seen a string of pro–states’ rights rulings that several observers have labeled a “Federalist revival.” United States v. Lopez (1995) struck down a federal statute, the Gun-Free School Zones Act, as outside the Commerce Clause for the first time since 1937. City of Boerne v. Flores (1997) and a string of follow-on rulings restricted Congress’s parallel power to enforce the Reconstruction Amendments. New York v. United States (1992) recognized a new restraint barring the federal “commandeering” of state institutions to enforce federal law. And Seminole Tribe of Florida v. Florida (1996) initiated a string of dramatic rulings expanding the sovereign immunity of state governments from damages suits under federal law.
Despite these rulings, it remains unclear whether the Rehnquist Court’s legacy will amount to a truly significant shift in direction. Many of the federal statutes invalidated by the Court, such as the Gun-Free School Zones Act or the interim provisions of the Brady Act struck down in Printz v. United States (1992), had little practical significance. Congress retains many options for circumventing state sovereign immunity, and the Court has yet to erect any barriers against the pervasive use of federal funding to influence state policy. Perhaps most important, the Rehnquist Court’s statutory rulings, such as Geier v. Honda Motor Company(2000) and Lorillard Tobacco Company v. Reilly (2001), have aggressively expanded federal preemption of state regulatory authority. The nationalizing impetus of these preemption cases may yet prove more important to state autonomy than the Court’s overtly “constitutional” rulings.
Part of the Rehnquist Court’s reluctance to aggressively expand constitutional protections for federalism may stem from an ongoing and vigorous debate over the proper role of judicial review in disputes about the balance between state and national authority rely on judicial review as an exclusive or even the primary mechanism for protecting federalism. James Madison’s discussion in The Federalist Nos. 45 and 46 focused on structural and political constraints on national power, including the states’ representation in Congress and, in Madison’s view, the natural advantages that the states enjoyed in competing for the political loyalties of the people. Building on this analysis nearly two centuries later, Professor Herbert Wechsler (1954) argued that these “political safeguards of federalism” reduced the need for judicial review of federalism issues; in 1980, Professor Jesse Choper extended that argument to urge that courts abstain from deciding federalism cases altogether so that they might focus their energies and political capital on protecting individual rights. Relying in part on these ideas, the Burger Court’s decision in Garcia concluded that “[s]tate sovereign interests . . . are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”
Many observers have been critical of this Garcia-Wechsler notion of “political safeguards” for federalism. Some have focused on the extent to which members of Congress represent people and interests in their states, but not necessarily the institutional interests of state governments themselves. The founders envisioned a competition between state and federal politicians for the affections of the people, and in this context, federal politicians may have little incentive to protect state institutional prerogatives from federal encroachments. Others have emphasized the extent to which national institutions—including not only the president and the federal courts, but also the national media and political parties—have come to dominate the policy agenda at the expense of members of Congress who may be more rooted in the states.
Some commentators, however, have argued that the national legislative process may protect federalism even if federal politicians do not consciously look out for the states. Article I creates a difficult institutional gauntlet that federal legislative proposals must run, and the legislative inertia inherent in this process arguably protects federalism simply by ensuring that national inaction will leave significant fields open to state action. Still others have emphasized that “political safeguards” need not mean the abandonment of judicial review altogether. Parts of the Garcia opinion suggested that judicial review might be appropriate to ensure that the “political safeguards” for states are in fact functioning, much as judicial review under the First Amendment ensures that government may not block access to the political process or individuals.
In any event, the Supreme Court has rejected suggestions that it should either avoid deciding federalism cases altogether or defer to Congress’s view of the extent of national power. The body of doctrine that has emerged to restrict national power may usefully be divided into three categories: power federalism rules limiting the substantive reach of national power, process federalism rules shaping the ways in which national actions are taken that facilitate representation of state interests or restrict encroachments on state autonomy, and immunity federalism rules that protect the institutions of state governments themselves from regulation by the national government.
Power federalism doctrines will be most familiar from the history of judicial review in this area. They include the long-standing doctrine of dual federalism, which interpreted Congress’s enumerated powers as creating mutually exclusive spheres of state and national authority. The states possessed exclusive authority over issues like education, local crime, and intrastate commerce, for example, while federal authorities enjoyed exclusive competence over such matters as foreign affairs and interstate commerce. Although the dual federalism doctrine died in 1937, cases like Lopez and City of Boerne indicate that the Court is still prepared to enforce some limits on Congress’s authority under both the Commerce Clause and the Reconstruction Amendments. Nonetheless, most commentators seem to agree that, given the integration of the national economy and the correspondingly broad scope of “commerce among the several states,” these sorts of substantive limits on Congress’s power are unlikely to ever provide much of a constraint on national action.
Process federalism takes up Garcia’s invitation to focus on the way that federal actions are taken, rather than the substance of those actions. Such rules might be directed toward ensuring political representation of state governmental interests, enforcing the procedural limitations on federal lawmaking, or both. The Court has imposed a number of “clear statement rules” of statutory construction, for example, that require Congress to express its intent to take a particular action more explicitly than would otherwise be required, where that action would encroach on state autonomy. These rules, which have been imposed for actions that regulate state institutions directly, preempt state law, and the like, both ensure that Congress will have to deliberate about the effect of its actions on federalism and, on a more practical level, raise the drafting and negotiation costs of federal actions. Likewise, the Court’s “anticommandeering” doctrine, which prohibits requiring state officers to enforce federal law, is designed to ensure clear lines of political accountability for federal actions and to force the national government to internalize the enforcement costs of its policies.
Immunity federalism does not restrict the policies that the national government may enact; rather, it simply shields the states from the obligation to comply with those policies. The exemption may be complete or partial. The National League of Cities doctrine, for example, held that certain forms of federal regulation—such as minimum wage and overtime rules—could not be applied to certain institutions of state government. The Court’s state sovereign immunity cases, on the other hand, do not hold that states may ignore federal laws; instead, they simply limit the ability of private plaintiffs to obtain money judgments against state governmental institutions when the states violate federal law. Other forms of immunity federalism include the Court’s many limitations on the right of state prisoners to seek habeas corpus review of their convictions or sentences in a federal court. These rulings do not, after all, absolve the state criminal courts of their obligations to comply with federal constitutional restrictions on state judicial processes; rather, they simply limit the availability of certain forms of relief when those constitutional restrictions are violated. It is probably fair to say that the Rehnquist Court has tended to emphasize the immunity model of federalism doctrine to a considerably greater extent than the power or process models.
It is also important to acknowledge a different set of doctrines restricting state power. Some of this jurisprudence has emerged under the Privileges and Immunities Clause of Article IV, which has been interpreted to restrict states from discriminating against out-of-staters in matters like employment opportunities. The vast majority of cases, however, has been decided under the Commerce Clause, which the Court has read not only as granting affirmative power to Congress but also as imposing “negative” restrictions on state regulation of the interstate economy. (This notion is often referred to as the “dormant” Commerce Clause, because it attributes preemptive effect to Congress’s regulatory authority over commerce even in areas where that power remains unexercised.) Dormant Commerce Clause cases generally fall into two strands: a vigorous principle barring virtually all instances of state regulation that discriminate against out of- state business, and a less rigorous strand invalidating certain neutral state regulations on the ground that they impose an excessive burden on interstate commercial activities, even where that burden falls on in-staters and out-of-staters alike. Because of the difficulty of determining which burdens are “too heavy” in a principled way, the modern Court has tended to emphasize the antidiscrimination aspect of its dormant Commerce Clause case law.
Although the Supreme Court has played a pivotal role in shaping the balance of our federalism from the founding of the republic, that role continues to be controversial. A consistent bloc of four justices on the present Court has dissented from almost all of the Court’s state-protective rulings; more remarkably, that bloc has also repeatedly indicated its intent to reverse those rulings should it acquire a fifth vote through a change in the Court’s personnel. Whether or not that particular scenario comes to pass, it seems likely that the Court’s role will continue to oscillate between centralizing and decentralizing influences, much as it has throughout our history.
Jesse Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Chicago: University of Chicago Press, 1980); Edward S. Corwin, “The Passing of Dual Federalism,” Virginia Law Review36 (1950): 1; Vicki C. Jackson, “Federalism and the Uses and Limits of Law: Prints and Principle,” Harvard Law Review 111 (1998): 2180; Larry D. Kramer, “Putting the Politics Back into the Political Safeguards of Federalism,” Columbia Law Review100 (2000): 215; Herbert Wechsler, “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government,” Columbia Law Review 54 (1954): 543; and John C. Yoo, “The Judicial Safeguards of Federalism,” Southern California Law Review 70 (1997): 1311.