Academic journal article Harvard Law Review

The Lesson of Lopez: The Political Dynamics of Federalism's Political Safeguards

Academic journal article Harvard Law Review

The Lesson of Lopez: The Political Dynamics of Federalism's Political Safeguards

Article excerpt

Apart from the limitation on federal authority inherent in the delegated
nature of Congress' Article I powers, the principal means chosen by the
Framers to ensure the role of the States in the federal system lies in
the structure of the Federal Government itself. (1)

With one fateful sentence in Garcia v. San Antonio Metropolitan Transit Authority, (2) the Supreme Court gave institutional credence to a strand of federalism theory whose fortunes had waxed and waned since the Constitution's inception. (3) Garcia marked the end of a two-decade-long struggle by the High Court over how best to protect state governments from excessive congressional regulation. (4) The majority alluded to the views of the Framers, suggesting that "the structure of the Federal Government itself was relied on to insulate the interests of the States." (5) This familiar notion was perhaps best captured thirty years earlier by Professor Herbert Wechsler's ethereal phrase "The Political Safeguards of Federalism." (6) Although Professor Wechsler and his disciples have proven unable to articulate what precisely those safeguards are and how they protect the states, (7) the notion that the states somehow occupy a special position in our federal system continues to serve as Exhibit A in the struggle against judicial enforcement of federalism. (8)

Garcia could be considered the high-water mark for political safeguards' proponents due to its explicit refusal to engage in substantive judicial review, hinged upon a blind faith in the political process to cure infringements of states' rights. (9) But its revolution was short-lived. The Garcia dissent's warning of "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power" (10) proved prophetic. Without the realistic prospect of judicial review to rein in Congress, the next decade saw federal power grow at the expense of the states, up to and beyond Congress's constitutional limits. Not until 1995 did the Court emphatically reenter the field of substantive judicial review with its decision in United States v. Lopez, (11) which invalidated the Gun-Free School Zones Act of 1990 (12) for reaching beyond Congress's commerce power and into the sphere of regulation constitutionally reserved to the states. (13)

Lopez is a powerful rejoinder to those who believe the constitutional division of power between Washington and the states is adequately protected by the political process alone. The majority recognized that judicial enforcement of federalism principles "may in some cases result in legal uncertainty," but that any benefit gained by the elimination of judicial review "would be at the expense of the Constitution's system of enumerated powers." (14) In this sense, Lopez suggests a more nuanced understanding of the holding in Garcia: When the legislation in question is clearly within Congress's enumerated powers, the political process may be the appropriate mechanism to determine whether the issue is best dealt with at the federal or state level. But the political process alone is an inadequate sentry to guard the constitutional boundary established by Article I.

This Note explores that truth in greater detail by analyzing critically the role of political safeguards at the frontier of constitutional power. It seeks to shed light on an oft-ignored but vital aspect of the political safeguards debate: the process by which the political branches enact legislation. By examining the structure of the political branches and the incentives affecting actors in the national political process, one can understand more completely how concerns about federalism enter political debate, and the power these concerns wield relative to the myriad other interests exacting concessions from Washington lawmakers. This Note attempts to show that the political struggle for power between the federal and state governments is insufficient to keep Congress from exceeding the constitutional limits on its power established by Article I. …

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