Academic journal article
By Frymer, Paul; Yoon, Albert
Northwestern University Law Review , Vol. 96, No. 3
Almost fifty years ago, Herbert Wechsler famously argued that congressional legislation requiring individual states to fulfill federal mandates should be given great deference by the Supreme Court because state interests were better protected by the legislative process.' All federal laws, Wechsler noted, had to gain the approval of the Senate, which by design represents states rather than individuals; the House, which is composed of districts drawn by state legislators; and the President, who is elected by the Electoral College, an institution also designed to protect in part the interests of states. Because the Constitution ensured that state interests were represented in the two elected branches of the federal government, Wechsler argued, it obviated the need for the Court to subject congressional legislation to judicial review on behalf of the states.
In 1980, Jesse Choper extended Wechsler's thesis, emphasizing the importance of congressional committees and party leadership in the Senate and House of Representatives, as well as the emergence of state lobbies that formed in the nation's capital to combat federal power during the Great Society.2 Five years later, a majority of the Supreme Court adopted this line of argument, which has come to be called the "political safeguards thesis," in Garcia v. San Antonio Metropolitan Transit Authority:
Me are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the "States as States" is one of process rather than result. Any substantive restraint on the exercise of the Commerce Clause powers must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible
failings in the national political process rather than dictate a "sacred province of state autonomy."'3
In recent years, however, the Court has largely abandoned the political safeguards thesis,4 aggressively overturning federal legislation on the grounds that it infringes upon the constitutional interests of individual states.' The Court has argued that Congress and other national political institutions have not-and perhaps cannot-protect the interests of states, particularly state officials. There is, the Court has claimed, a fundamental conflict between national and state institutions: to avert blame for the difficult choices they face, congressional members attempt to accomplish national goals while deflecting the responsibility of policy enforcement, implementation, and financing onto the states through the passage of unfunded mandates.6 Many law professors agree with the Court, arguing that Congress cannot be trusted with the representation of state actors and that there is little legal precedent for providing the national legislative branches with the opportunity to tread on state government terrain in the absence of
judicial review.7 Even one of Wechsler's sympathizers, Mark Tushnet, has recently written, "It seems fair to say that no one today believes that Wechsler's arguments retain much force.118 Through recent decisions, the Court has made emphatically clear that it believes it more effectively protects and advances state interests than does Congress or other national political institutions?
In the face of these Court decisions and supporting legal scholarship, Larry Kramer has attempted to revive the Wechsler thesis, but with a twist.10 States are protected by the legislative process, claims Krameralthough not by constitutionally created institutions like the Senate or the Electoral College. Instead, he argues, the party system has "protected the states by making national officials politically dependent upon state and local party organizations."" Kramer asserts that because American parties are highly decentralized and responsive to voter interests, they do an excellent job of channeling the concerns of state and local voters and officials into national party platforms and agendas. …