Federalism and the Contrivances of Public Law

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INTRODUCTION

The specter of federalism is stalking public law. Through its recent resuscitation of constitutional limitations on Congress's power to legislate under the Commerce Clause,1 the United States Supreme Court appears amenable, for the first time in generations, to striking down a range of public welfare laws. Most recently, the Rehnquist Court wielded the blunt side of its federalist ax in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC)2 to strike down on statutory grounds a major component of the Federal Clean Water Act.3 Although SWANCC has been underestimated in the shadow of the more straightforward Commerce Clause holdings in United States v. Lopez,4 which overturned a minor federal gun law,5 and United States v. Morrison,6 which struck down a limited federal civil statute on violence against women,7 SWANCC is arguably more significant in that it marked the first time that a major federal statutory regime felt the sting of the Rehnquist Court's restrictive new federalism.

Some advocates of broad national power comfort themselves with the thought that the Rehnquist Court is finished with its new federalism, in part because the Court in SWANCC technically stopped just short of reaching the constitutional issue.8 By contrast, I maintain that the Rehnquist Court has positioned itself to take aim at a range of public welfare statutes, from environmental legislation to laws outlawing race and sex discrimination.

To understand fully the bases and implications of the Rehnquist Court's new federalism, it is necessary to acknowledge and understand what I call the contrivances at issue in many public welfare laws and their judicial review. The first two of the four contrivances concern the federal government's creation of statutory regimes. The contrivance of motivation arises when the government concocts arguments that its public welfare laws, such as the water pollution law in SWANCC9 or statutes against racial discrimination,10 somehow fall within the regulation of interstate commerce, as opposed to being simply vindications of modern conceptions of a fair and just society. Relatedly, the contrivance of construction arises when zealous drafters or agency administrators expand unnaturally the scope of a statutory regime. These contrivances raise the ire of federalist jurists, as shown by the Rehnquist Court's disapproval in SWANCC.

The third and fourth contrivances arise from the Supreme Court's federalist jurisprudence. The Rehnquist Court's new federalism threatens-or promises, if you prefer-to return constitutional law to the so-called dual federalism of the early twentieth century,11 in which certain realms of human activity were held to be off-limits to national legislation, regardless of potential links between the law and interstate commerce.12 A full-scale revival of this doctrine would imperil not only much of federal environmental law but also anti-discrimination law, labor standards, and much of what progressives think of as the essentials of social legislation. The fundamental flaw in the Rehnquist Court's new jurisprudence is that so far it is only a contrivance of dual federalism, in which the line between national and state realms is drawn merely by the Court's perception of tradition, which makes little sense as a matter of logic, precedent, or history.

Finally, the contrivance of libertarianism arises from the federalist assumption that constraining the national government will result in more freedom. Although the role of libertarianism in the new federalism might seem obvious, it has failed to achieve the prominence that it deserves in either the jurisprudence or in the commentary13-in large part because advocacy of libertarianism is difficult to justify as a principle of constitutional interpretation.

Explicit recognition of the contrivances surrounding federalism may lead to better statutory construction and better constitutional jurisprudence. …