Federalism Commentary


Two Current Challenges to Federalism in Switzerland

Relations between the Swiss federal government and the 26 cantons have never been entirely easy but 2020 has presented challenges of a kind and intensity that are new. Two events are especially noteworthy: the Covid-19 pandemic and a recent constitutional initiative that failed to get support from a majority of the cantons.

An important question raised by the Covid-19 pandemic is which level of government is entitled to, and should, handle the various problems posed by the spread of the virus. The federal government has the legal right to invoke emergency measures and apply nationwide restrictions on people and businesses while the cantons are in charge of health and sanitary issues as well as matters such as the opening hours of stores, restaurants, museums, and sports facilities. The Federal Council took the lead during the first wave of infections but the cantons and parliament vigorously reclaimed their rights as soon as the infection rates abated in late spring. Even as of October 2020, when the second wave set in, strong political pressure was exerted for the cantons to decide on the measures they considered appropriate for their territory. Only when the rates continued to climb and hospitals and health personnel were reaching their saturation point was it accepted that the Federal Council could and should step in and again apply stricter and nationwide measures. Even then, the Federal Council only set basic standards that could be raised or lowered depending on the situation (e.g., the virus’s reproduction rate) in the individual cantons.

Federalism “made in Switzerland” means that a central ruling is to be avoided unless absolutely necessary. This understanding is widely shared in the country, not only by politicians but also by the population. It led to a way of handling the pandemic that was different from the surrounding countries, to the point that it has become known as the “Swiss way.” The lead of the Federal Council and nationwide restrictions during the first wave were widely accepted – not least as a result of the generous subsidies offered to those affected by the measures by the federal government. Subsequently, and for the better part of the year, even the Federal Council accepted the fact that cantonal measures were more appropriate because there were considerable differences in infection and hospitalization rates among the cantons. Only hesitatingly and in the light of a drastically deteriorating health situation did the federal government take the lead again toward the end of the year. Whether this mode of handling an extraordinary situation is in the best interest of the country will undoubtedly be examined in the months to come. By late December, Switzerland had fewer Covid-19 deaths (79.6 deaths per 100,000 population) than Belgium (163.7) and the United States (97.6) but more than Austria (61.4), Canada (38.7), and Germany (32.7).

An entirely different challenge involving a constitutional aspect of federalism arose in the wake of a national vote at the end of November. The Swiss constitution offers its citizens the right to submit initiatives. If accepted, their texts become part of the national constitution. It is relatively easy to launch such initiatives because only 100,000 signatures are required, a figure that has not changed since 1977 even though the population has since increased by 37 percent to 8.6 million people. However, initiatives are only accepted if they receive a double majority, that is, if the majority of both the population of the country and the cantons vote for them. In all the cantons, their vote reflects the outcome of the popular vote in their territory.

The initiative put to a vote in November was entitled “For responsible enterprises – to protect human beings and the environment.” Hotly debated for weeks before the vote, the proposal would have required enterprises of a certain size headquartered in Switzerland to be held accountable for violating internationally recognized human rights and environmental standards anywhere in the world, not only for their own activities but also for those of subsidiaries and companies they control. Complaints for violating these rights and standards could be brought before Swiss courts and, if the claims were found to be reasonable, it would be on the enterprise concerned to demonstrate that it had taken appropriate measures to prevent violations, which amounts to a shift of the burden of proof.

The initiative drew support from more than one hundred NGOs as well as from citizens and politicians across the political spectrum but it was narrowly defeated. Although a thin majority of 50.7% of the popular votes were cast in favor of the initiative, 14.5 of the 26 cantons rejected it. Rejection came primarily from smaller, rural cantons in the German-speaking part of Switzerland while most Latin (French- and Italian-speaking) cantons and some urban cantons in the German-speaking part accepted it.

This was only the second time (the first time occurred in 1955) since the introduction of the initiative in the 19th century that a proposal received popular approval but was rejected for failing to receive the constitutionally required double majority. Unsurprisingly, in light of the emotion-laden discussions during the campaign, the result caused large protests. Many people lamented the “outdated” requirement of a double majority, blamed the smaller cantons for their “backwardness,” and regretted the split between the French- and German-speaking areas as well as that between the rural and urban cantons. Less emotionally, commentators pointed to the uneven voting powers of residents in the more populous compared to the less populous cantons. For example, the positive vote of the canton Zurich with nearly half a million voters had the same weight as the negative vote of the canton Glarus with slightly more than 10,000 voters, thus giving a voter in Glarus 40 times the weight of a Zurich voter. Proposals for “improving” this situation were quickly offered. They ranged from outright abandonment of the requirement of a cantonal majority to the attribution of different votes to the cantons according to their population to the necessity of a two-thirds majority of cantons to be able to annul a clear majority of several percentage points of popular votes. Is it likely that such proposals will be accepted? Chances are slim, not least because they would require changing the constitution where again a double majority would be necessary. This is a situation that must ring a bell to US readers in light of the ongoing discussion about the role of the electoral college in US presidential elections.

December 2020
Hanspeter Tschäni
Former Ambassador SECO


Roles of the U.S. Supreme Court in American Federalism

John Kincaid

The Supreme Court of the United States has played major roles in shaping American federalism since the start of the republic. In 1793, the Court ordered Georgia to pay two South Carolina residents a debt owed to them.[1] The decision prompted ratification of the Eleventh Amendment to the U.S. Constitution in 1795, which protects states’ sovereign immunity by prohibiting citizens of a U.S. state from suing another state in federal court.[2] Overall, the Court has supported centralization, especially since 1937, although, at times, the Court protects powers of the states against centralization.[3] The Court has never formu­lated a coherent federalism doctrine, but it has set forth various narrow doctrines that protect states’ powers in some ways.

The United States has a dual federal system in which the federal government is granted specific powers enumerated in the U.S. Constitution. All other powers are reserved to the states, including the important police power, which is the authority of states to legislate for the health, safety, welfare, and morals of their citizens. Significant domestic powers of the federal government include its independent tax and expenditure powers and au­thority to regulate interstate and foreign commerce. The Constitution’s “necessary and prop­­er” clause (Art. I, Sec. 8) allows Congress to interpret its delegated powers broadly; its “supremacy clause” (Art. VI) ensures that the U.S. Constitution, treaties, and federal laws enacted pursuant to the Constitution prevail in conflicts with state constitutions and statutes.

The nine members of the Court are nominated by the President and confirmed by the U.S. Senate. Justices serve until they resign, retire, die, or are impeached and removed from the Court by Congress.[4] Congress can increase but not decrease justices’ salaries during their service.

One can divide the Court’s history into four periods.

1       Pre-Civil War Period (1789–1861)

During this period, the Court was preoccupied with drawing boundaries between the powers of the states and the federal government, especially to protect the federal govern­ment from the more powerful states. Under Chief Justice John Marshall, who served from 1801–1835, the Court often asserted federal powers. In its most famous ruling, Marbury v. Madison,[5] the Court asserted the power of judicial review, that is, the authority to strike down a federal or state law for violating the U.S. Constitution. In a famous 1819 case, the Court held that the necessary and proper clause allowed Congress to establish the Bank of the United States and that states could not tax the bank.[6] However, the Court provided some protection for the states by articulating the doctrine of intergovernmental tax im­mu­nity. This doctrine prohibits states from taxing instruments of the sovereign federal gov­­ern­ment and prohibits the federal government from taxing instruments of the sovereign states. For example, a state cannot levy a property tax on a U.S. Post Office build­ing. In the landmark Gibbons v. Ogden case,[7] the Court asserted exclusive federal authority to regulate commerce on rivers that flow between two or more states.

Two decisions, however, were important for states’ powers. In Sturges v. Crownin­shield,[8] the Court held that states could enact bankruptcy laws even though the power to regulate bankruptcies is delegated exclusively to the federal government. If Congress does not exercise an exclusive power, opined the Court, states can exercise the power. Indeed, Congress did not enact a bankruptcy law until 1898. Because of the Constitution’s supremacy clause, the 1898 law preempted (i.e., suspended) all state bankruptcy laws. Because of Sturges, the states were the primary regulators of the U.S. economy until the twentieth century, although the Court curbed their interference with interstate commerce. Before 1900, the Court heard about 1,400 commerce-clause cases; most concerned whether state laws violated the interstate-commerce clause.

In Prigg v. Pennsylvania,[9] the Court ruled that state and local government officials were not obligated to enforce the federal Fugitive Slave Act (1793) but could not interfere with federal officials enforcing the law in their states. Prigg is one important legal foun­dation for today’s sanctuary jurisdictions, namely, state and local governments, such as California, that refuse to help federal officials enforce federal laws against illegal aliens. It is also a pillar of states’ legalization of medical and recreational marijuana even though marijuana remains illegal under federal law.

2       Post-Civil War Period (1865–1937)

One result of the Civil War was a major change in the U.S. Constitution – the Fourteenth Amendment (1868) that gives Congress broad authority to enact and enforce laws to protect the rights of citizens within states. The Supreme Court, however, largely neutered the amendment in the Slaughterhouse Cases[10] and Civil Rights Cases.[11] Most notably, the Court limited the federal government’s commerce powers by arguing that farming, mining, and manufacturing were mostly beyond the reach of federal regulation because those activities occur within, not between, states.[12] In Hammer v. Dagenhart,[13] for in­stance, the Court voided a federal law prohibiting interstate transportation of goods pro­duced by children under age sixteen.

The Court also imposed some limits on state economic powers. One tool was the U.S. Constitution’s contracts clause, which prohibits states from enacting laws that impair the obligations of contracts (Art. I, Sec. 10). The Court sometimes used this clause to invali­date state laws establishing working conditions and supporting labor unions. In what many historians deem an infamous ruling, the Court struck down a New York law that lim­ited the working hours of bakery employees to ten hours per day and 60 per week.[14] In Morehead v. New York ex rel. Tipaldo,[15] the Court voided New York’s minimum-wage law as a violation of the right to liberty of contract.

Overall, however, the Court upheld more state economic regulations than it vacated.[16]

The Court gave southern states a major victory in Plessy v. Ferguson,[17] upholding those states’ race-segregation laws. Nonetheless, the Court issued a few decisions pro­tect­ing rights of black Americans. In 1917, the Court ruled that a Louisville, Kentucky, or­dinance forbidding the sale of real property to black Americans in majority-white neigh­borhoods or buildings violated the Fourteenth Amendment’s freedom-of-contract pro­tection.[18]

With the rise of what came to be called “cooperative federalism,”[19] which involved the introduction of federal financial grants to states, the Supreme Court severely limited the ability of states and citizens to challenge conditions (i.e., regulations) attached to such grants.[20] Federal grants are therefore a major tool for increasing federal power over the states. For example, lacking constitutional authority to enact a minimum age for citizens to purchase alcoholic beverages, Congress attached a minimum-age condition to federal highway aid. States were required to increase the purchase age to 21 or lose up to ten per­cent of their highway aid.[21] The Supreme Court upheld this aid condition.[22]

3       New Deal Period (1937–1969)

During the Great Depression (1929–1939), President Franklin D. Roosevelt, who was elected in 1932, advocated many economic regulations under the slogan of a “new deal” for the “forgotten man.” New Deal laws enacted by Congress vastly increased the federal government’s regulatory reach into economic activities historically regulated by the states. The Supreme Court frustrated Roosevelt by striking down some of these laws.

In February 1937, Roosevelt asked Congress to increase the size of the Court to 15 members so he could appoint justices sympathetic to his policies. The proposal was ill-received by Congress. However, in March 1937, in West Coast Hotel v. Parrish[23] (which upheld a minimum-wage law in Washington state) and in April 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corporation[24] (which upheld the National Labor Relations Act of 1935), Justice Owen J. Roberts suddenly switched to voting for state economic regulation and New Deal laws. His votes were dubbed “the switch in time that saved nine.” Thereafter, until 1995, the Court deferred entirely to Congress’s defini­tions of interstate commerce, allowing Congress to vastly expand its regulation of an in­creasing range of economic matters and reducing states’ powers.

Crucial to the switch was the Court’s willingness to allow Congress to regulate matters of intrastate commerce deemed to have substantial effects on interstate commerce. In the Court’s post-1937 view, Congress can (1) regulate the use of channels of interstate com­merce, (2) regulate and protect instrumentalities of and persons or things in interstate com­merce even if a threat comes only from intrastate commerce, and (3) regulate any “activities having a substantial relation to interstate commerce.”

The bête noire for opponents of this switch is Wickard v. Filburn.[25] The Court held that Congress can regulate a small amount of wheat grown by a farmer to feed his farm animals. The Court reasoned that if thousands of farmers did this, the cumulative impact of their actions would affect the interstate market for wheat and undermine the Agricul­tural Adjustment Act (1938), which required farmers to keep certain amounts of acreage out of production each year so as to maintain wheat prices.

Beginning in 1954, the Court also revived the Fourteenth Amendment when it unan­i­mously overturned Plessy v. Ferguson[26] and struck down state laws (mostly in the South) requiring racially segregated elementary and secondary schools. The decision initiated a massive effort by the federal government to invalidate or preempt state laws having dis­crim­inatory impacts on African Americans, other minorities, and women. The Court did not, therefore, challenge such major federal laws as the Civil Rights Act of 1964 and Voting Rights Act of 1965, both of which authorized substantial federal interventions into states’ affairs.

Another major development that accelerated during the 1960s was the Court’s se­lec­tive incorporation of the U.S. Bill of Rights into the Fourteenth Amendment, thereby ap­plying most provisions of the U.S. Bill of Rights to actions of state and local governments. When the Bill of Rights was added to the U.S. Constitution in 1791 as its first ten amend­ments, it applied only to actions of the federal government,[27] not state and local govern­ments, because states had their own constitutional bills of rights. However, in 1925, the Court ruled that the U.S. Bill of Rights’ freedom-of-speech clause could be applied to states via the Fourteenth Amendment and could invalidate a state law regardless of the freedom-of-speech provision in the state’s constitution.[28] The Court’s most recent incor­po­ration held that the Second Amendment’s right to “keep and bear arms” is an individual right pro­tected under the Fourteenth Amendment just like freedom of speech.[29] Before this 2010 ruling, states had nearly unfettered authority to regulate guns. Now their gun laws are sub­ject to possible invalidation by federal courts based on the Supreme Court’s view of per­mis­si­ble regulations under the Second Amendment.

Overall, during the New Deal period, the Supreme Court both supported and initiated increases in federal authority over the states and their local governments. During this period, Democrats controlled the presidency for 24 of the 32 years and the U.S. Congress for 28 years.

4       Semi-Revanchist Period (1969–Present)

The 1968 election of Republican Richard M. Nixon to the presidency signaled a coming change in the Court’s jurisprudence. Earl Warren, the most liberal (i.e., left-leaning) Chief Justice in U.S. history, retired in 1969 and was replaced by the more conservative (i.e., right-leaning) Warren Burger, who served until 1986. Nixon wanted to reverse the Court’s liberal march and have the Court restore powers to the states. Nixon and his Re­pub­lican successors had limited success because this period has been marked by alter­na­tions of party control of the presidency and Congress and because justices nominated by Re­pub­li­can presidents have not been reliably conservative. The current chief justice, John Roberts, who was nominated by Republican President George W. Bush in 2005, is a lead­ing ex­ample. President Donald Trump tried to nominate reliable conservatives but was sorely disappointed when Justice Neil Gorsuch, appointed in 2017, wrote the majority opinion in a major 2020 case holding that the word “sex” in the 1964 Civil Rights Act in­cludes gays, lesbians, and transgender people.[30] Nonetheless, during this period, the Court has formulated several doctrines that occasionally protect states’ powers against federal en­croachment.[31]

4.1    Prohibiting Federal Conscription of State Officials

An important doctrine, first articulated in 1992,[32] prohibits Congress from conscripting or commandeering state or local government officials to execute federal laws. This doc­trine was reaffirmed in Printz v. United States,[33] which voided a provision in the Brady Hand­gun Violence Protection Act (1993) that required local law-enforcement officers to conduct background checks of handgun buyers until the federal government could es­tab­lish its own checking system. Justice Antonin Scalia delivered an opinion upholding dual sovereignty and protecting state sovereignty against congressional encroachments through broad interpretations of the U.S. Constitution’s necessary and proper clause. However, the Court narrowed the doctrine somewhat in 2000 by ruling that the anti-commandeering doctrine prohibits only federal laws that “require the States in their sovereign capacity to regulate their own citizens.”[34] One effect of this doctrine is to pressure Congress to pur­chase state and local enforcement of federal laws with grants-in-aid.

4.2    Limiting Congress’s Commerce Power

After March 1937, the Court did not strike down any federal statute as exceeding Congress’s interstate commerce power until 1995. In 1990, Congress enacted the Gun-Free School Zones Act even though 41 states already had Gun-Free School Zones laws. The federal law applied the rule to all states and established criminal penalties for vio­lat­ing the law that were harsher than penalties in most of the states’ laws. In 1992, a student was arrested for carrying an unloaded handgun in his school. He was prosecuted under the federal statute. At issue in United States v. Alfonso D. Lopez, Jr.[35]was whether the fed­eral law was a valid exercise of Congress’s interstate commerce power.

Congress reasoned that guns cause violent crime and other harms that create expenses, increase insurance costs, and frighten citizens from traveling in places believed to be un­safe – all of which affect the economy. Congress reasoned as well that a gun in a school scares students and retards learning. This harms the national economy because education is essential for a modern economy. In a 5–4 ruling, the Court rejected this rationale as a slippery slope that would obliterate any distinction between what is local and what is na­tion­al. Under this rationale, asked the majority, is there any human behavior that Congress could not regulate via the interstate commerce clause?

In United States v. Morrison (2000), the Court invalidated a section of the U.S. Vio­lence Against Women Act (VAWA) that established civil liability for committing a gen­der-based violent crime (e.g., rape), but without any jurisdictional requirement of a con­nec­tion to interstate commerce. Lopez and Morrison, however, are exceptions to the Court’s continuing deference to Congress’s interpretations of its interstate commerce powers.

Even so, the Court has held that state regulations affecting interstate commerce will ordi­narily be upheld if the state law “regulates evenhandedly to effectuate a legitimate local public interest […] its effects on interstate commerce are only incidental” and “the burden imposed on” interstate commerce is not “clearly excessive in relation to the pu­ta­tive local benefits. If a legitimate local purpose is found, then the question becomes one of degree” and whether the local purpose “could be promoted as well with a lesser impact on inter­state activities.”[36]

4.3    Reviving States’ Sovereign Immunity

After decades of allowing Congress to encroach upon the states’ Eleventh Amendment sovereign immunity, the Court partially resuscitated this immunity in 1996 by holding that Congress lacks authority to abrogate the states’ sovereign immunity through laws enacted under Congress’s Article I powers.[37] The Court strengthened the doctrine in 1999 by asserting that the states’ sovereign immunity in any tribunal, including state courts, is an essential attribute of their sovereignty, which they retained when they entered the federal union, regardless of the federal Constitution’s delegations of power to Congress in Article I and to the federal courts in Article III.[38] In this case, several employees of the state of Maine sued Maine under the federal Fair Labor Standards Act (1938). They first sued in federal court, but after Seminole Tribe,[39] they moved their lawsuit to Maine courts. Writing for the U.S. Supreme Court’s majority, Justice Anthony Kennedy said that a “con­gressional power to authorize suits against States in their own courts would be even more offensive to state sovereignty than a power to authorize suits in a federal forum.”[40]

4.4    Requiring Plain Statements by Congress when Impairing States’ Powers

Since the late 1960s, there has been a massive increase of federal preemptions of state laws.[41] However, Congress did not always explicitly say that it intended to preempt state laws when enacting statutes. This often compelled the Court to decide whether a federal law that seemed to contradict a state law preempted that state law. The Court has, there­fore, insisted that Congress include an “express” or “plain” statement in a statute if it in­­tends to preempt conflicting state laws.[42]

The Court also has insisted on plain statements of Congress’s intent to abrogate states’ Eleventh Amendment sovereign immunity, allow civil-rights suits against state and local governments under the Civil Rights Act of 1871 (42 U.S.C. § 1983), and attach conditions to grants. As the Court opined in 1980, “if Congress intends to impose a condition on a grant of federal moneys, it must do so unambiguously.”[43]

4.5    Protecting States’ Republican Autonomy

The U.S. Constitution’s republican guarantee clause (Art. IV, Sec. 4) states: “The United States shall guarantee to every State in this Union a Republican Form of Government.” Justice Sandra Day O’Connor used this clause together with the Tenth Amendment, which reserves all undelegated powers to the states or the people, to uphold the right of Missouri voters to insert a provision in their constitution requiring state judges to retire at age 70 despite a contrary provision in the federal Age Discrimination in Employment Act (1967).[44] Although the U.S. Supreme Court ruled in favor of Missouri, O’Connor’s argu­ment never gained majority support on the Court.

4.6    Limiting Section 5 of the Fourteenth Amendment

Section 5 of the Fourteenth Amendment authorizes Congress to enforce the amendment “by appropriate legislation.” In 1997, the Court struck down the federal Religious Free­dom Restoration Act (1993) on the ground that Congress cannot expand its Section 5 enforcement power beyond the “congruence and proportionality between the injury to be prevented and remedied and the means adopted to that end.”[45] The Court reaffirmed this doctrine in several later cases.[46]

4.7    Allowing States to be Laboratories of Democracy

In 1932, Justice Louis Brandeis said that “a single courageous state may, if its citizens choose, serve as a laboratory, and try social and economic experiments without risk to the rest of the country.”[47] This doctrine was reflected in two 1997 Court rulings in which the Court refused to legalize physician-assisted suicide nationwide, instead leaving the de­ci­sion to the democratic processes of the states.[48] As of mid-2020, nine states had legalized physician-assisted suicide.

4.8    Rejecting Coercive Conditions Attached to Federal Grants

In 2012, the Court for the first time struck down a condition of federal aid, arguing it was a coercive use of Congress’s spending power.[49] The case involved the huge Medicaid program (health insurance for the poor) to which the federal government contributes 50 percent to 78 percent of states’ costs depending on a state’s per capita income. The Court found the aid condition, which required states to increase the number of Medicaid re­cip­ients, to be coercive because (1) the required expansion constituted a new, independent program that states could reject only at the price of losing all their federal funds for the pre-expansion program, (2) Congress did not give states sufficient notice of a need to com­ply with the new condition, and (3) the condition was an “economic dragooning” of the states that left them no practical choice but to accept the aid condition. However, the Court presented no clear criteria for identifying a coercive condition, and it will be dif­fi­cult to determine whether the ruling will deter Congress from enacting coercive condi­tions.

4.9    State Constitutional Rights Protections

After the conservative Burger Court began to narrow rights protections, especially for criminal defendants, Justice William Brennan published a famous article urging states, under their state constitutions, to grant more rights protection for their residents than the U.S. Supreme Court grants under the U.S. Bill of Rights.[50] State high courts have since issued about 1,000 such rulings. For example, the U.S. Supreme Court ruled that in­di­vid­uals have no federal constitutional right of free speech in privately owned shopping malls.[51] However, several state supreme courts have ruled that individuals have state con­stitutional free-speech rights in privately owned malls in their states. The U.S. Supreme Court ruled that police do not need a warrant to search trash placed outside one’s home for public collection.[52] The supreme courts of Hawaii, New Jersey, New Mexico, Ore­gon, and Washington have ruled that their state constitutions’ declarations of rights re­quire state and local police to obtain a warrant to search such trash. (Federal agents, how­ever, need no warrant in those states because they are governed by the U.S. Supreme Court’s ruling.)

The U.S. Supreme Court endorsed this development by ruling that it will not review such state supreme court rulings so long as the state court bases its decision solely on “adequate and independent” state constitutional grounds and makes a “plain statement” that it is doing so.[53]

4.10  Onward March of Centralization

The above doctrines have not stemmed the tide of centralization, which further ac­cel­erated after 1968,[54] but the doctrines established and preserved islands of state autonomy in the rising sea of federal power. Furthermore, federal power has expanded beyond eco­nomic regu­la­tion to encompass more social, environmental, and cultural regulation. The Court con­tribut­ed to this expansion by, for example, striking down laws in all 50 states that prohib­it­ed or restricted abortion[55] and nullifying state constitutional and statu­tory provisions in most states that prohibited same-sex marriage.[56]

A deleterious consequence of this expansion has been severe partisan polarization in the electorate and in the institutions of the federal government, including the Supreme Court. The expansion of federal social, environmental, and cultural regulation has brought into the national political arena issues previously decided by the states. When states de­termined such matters, acute conflicts over them were diffused across the states rather than concentrated in the federal government and national politics. The U.S. Supreme Court is an integral part of this concentration; as a result, both the left and the right in­creasingly accuse the justices of being partisan politicians.

Even so, the Court enjoys a comparatively high level of public confidence. A 2019 national poll found that 37 percent of Americans trusted the Supreme a great deal or quite a like, while 32 percent said the same about their state supreme court, 28 percent, the presidency, and only ten percent, Congress.[57]

5       Conclusion

The U.S. Supreme Court continues to play major roles in the development of the U.S. fed­eral system. Most often, it has supported centralization and expansions of federal power but not without preserving and creating some areas of autonomy for the states. This centralization also needs to be put in historical perspective. Because the system was so non-centralized for more than a century, many areas of state autonomy remain fully or partially intact, as was reflected in the ability of the states to respond vigorously to the COVID-19 pandemic in the face of inaction by the federal government. Most governors issued draconian stay-at-home orders with no interference from the federal courts. The degrees to which the Court supports centralization or states’ powers in the future will depend greatly on which political party controls the instruments of judicial selection – the presidency and the U.S. Senate.

[1]    Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).

[2]    The terms “federal government” and “federal court” refer to the national government.

[3]    See also Somin, Ilya 2017: The Supreme Court of the United States: Promoting Centralization More Than State Autonomy, in: Aroney, Nicholas/Kincaid, John (eds.): Courts in Federal Countries: Fed­er­alists or Unitarists? Toronto, pp. 440–481.

[4]    No justice has been impeached and removed by Congress.

[5]    5 U.S. (1 Cranch) 137 (1803).

[6]    McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

[7]    22 U.S. (9 Wheat.) 1 (1824).

[8]    17 U.S. (4 Wheat.) 122 (1819).

[9]    41 U.S. (16 Pet.) 539 (1842).

[10]   83 U.S. (16 Wall.) 36 (1873).

[11]   109 U.S. 3 (1883).

[12]   For example, Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869) and United States v. E. C. Knight Co., 156 U.S. 1 (1895).

[13]   247 U.S. 251 (1918).

[14]   Lochner v. New York, 198 U.S. 45 (1905).

[15]   298 U.S. 587 (1936).

[16]   Bernstein, David E. 2011: Rehabilitating Lochner, Chicago.

[17]   163 U.S. 537 (1896).

[18]   Buchanan v. Warley, 245 U.S. 60 (1917). See also Bailey v. Alabama, 219 U.S. 219 (1911).

[19]   Elazar, Daniel J. 1991: Cooperative Federalism, in: Kenyon, Daphne A./Kincaid, John (eds.): Compe­ti­­­tion among States and Local Governments: Efficiency and Equity in American Federalism, Wash­ington, DC, pp. 65–86.

[20]   Massachusetts v. Mellon, 262 U.S. 447 (1923).

[21]   National Minimum Drinking Age Act, 23 U.S.C. § 158 (1984).

[22]   South Dakota v. Dole, 483 U.S. 203 (1987).

[23]   300 U.S. 379 (1937).

[24]   301 U.S. 1 (1937).

[25]   317 U.S. 111 (1942).

[26]   163 U.S. 537 (1896),

[27]   Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[28]   Gitlow v. New York, 268 U.S. 652 (1925).

[29]   McDonald v. Chicago, 561 U.S. 742 (2010).

[30]   Bostock v. Clayton County, no. 17-1618, 590 U.S. ___ (2020).

[31]   The following discussion of doctrines is based substantially on Kincaid, John 2001: The State of U.S. Fed­eralism, 2000–2001: Continuity in Crisis, in: Publius: The Journal of Federalism, vol. 31, no. 3, pp. 1–69.

[32]   New York v. United States, 505 U.S. 144 (1992).

[33]   521 U.S. 898 (1997).

[34]   Reno v. Condon, 528 U.S. 141, 151 (2000).

[35]   514 U.S. 549 (1995).

[36]   Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

[37]   Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

[38]   Alden v. Maine, 527 U.S. 706 (1999).

[39]   Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

[40]   Alden v. Maine at 719.

[41]   U.S. Advisory Commission on Intergovernmental Relations 1992: Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues, Washington, DC.

[42]   Gregory v. Ashcroft, 501 U.S. 452 (1991).

[43]   Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 7 (1980).

[44]   Gregory v. Ashcroft, 501 U.S. 452 (1991).

[45]   City of Boerne v. Flores, 521 U.S. 507 (1997).

[46]   For example, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999) and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).

[47]   New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).

[48]   Washington v. Glucksberg, 521 U.S. 702 (1997) and Vacco v. Quill, 521 U.S. 793 (1997).

[49]   National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).

[50]   William J. Brennan 1977: State Constitutions and the Protection of Individual Rights, in: Harvard Law Review, vol. 90, no. 3, pp. 489–504.

[51]   Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

[52]   California v. Greenwood, 486 U.S. 35 (1988).

[53]   Michigan v. Long, 463 U.S. 1032 (1983).

[54]   Kincaid, John 2019: Dynamic De/Centralization in the United States, 1790–2010, in: Publius: The Journal of Federalism, vol. 49, no. 1, pp. 166–193.

[55]   Roe v. Wade, 410 U.S. 113 (1973) and most recently reinforced in June Medical Services v. Russo, no. 18-1323, 2020.

[56]   Obergefell v. Hodges, 576 U.S. 644 (2015).

[57]   Franklin, Charles H. 2019: Public Views of the Supreme Court, Law School, Marquette University. https://law.marquette.edu/poll/wp-content/uploads/2019/10/MULawPollSupremeCourtReportOct2019.pdf.


Originally published in Europäisches Zentrum für Föderalismus-Forschung Tübingen, ed., Jahrbuch des Föderalismus 2020. Baden-Baden: Nomos, 2020, pp, 153-162.



Municipal and Transnational Perspectives on Federalism: The View from Latin America”, in this paper Dr. Kent Eaton examines the state of federalism in Latin America with an emphasis on the need to include municipal governments and transnational actors into a federal analysis.  In addition, he calls for more attention to be given to better understanding the difference between unitary and federal systems of government, the relationship between federalism and ethnicity, and what factors contribute to the strength of federal institutions that politicians and elites cannot easily dismiss.  Dr. Eaton presented this paper at the CSF Panel at the 2019 APSA Annual Meeting, in Washington, D.C.

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