Throughout history, the courts have played a key role in determining the nature of the intergovernmental system in the United States. In particular, the Federal Courts haw been the central arbiter in deciding between assertions of national authority and state claims to protection from federal encroachment. The Courts have been asked time and again to choose between Constitutional commands supporting the national government on the one hand and commands supporting state and local governments on the other. In the decades of the 1940's through the 1980's, more often than not, the courts decided the trade-offs in favor of national authority and thus significantly supported the expansion of national governmental power.
This trend in support of the Federal Government is important, in that it has played a crucial role in structuring our system of governance, altered our system of public administration, and constituted fundamental constraints on the ability of state and local officials to direct programs and operations to meet the expanded domestic policy agenda that has been devolved to state and local governments. The trend in favor of national authority had persisted for so long that some commentators concluded that the federalism principle had outlived its usefulness and was no longer a viable judicial doctrine (Choper, 1980, pp. 255-256). Federalism supporters feared that the Supreme Court had reached the same conclusion and was formally signaling its abdication of any responsibility to protect state prerogatives.
Nonetheless, the worst fears of federalism supporters were not realized. The decade of the 1990's has brought a shift in the trend in federalism cases and brought the Supreme Court back to taking up a role as a protector of federalism. To understand why, it is necessary to scrutinize a series of cases decided from the opening of the decade. It began inauspiciously enough with an unobtrusive personnel policy case, Gregory v. Ashcroft (111 S. Ct. 2395, 1991). In that case, state judges challenged Missouri's constitutional requirement that judges retire at age 70. Citing the Federal Discrimination and Employment Act of 1967 and the Fourteenth Amendment, Missouri supported its constitutional regulation through the Tenth Amendment of the United States Constitution, which reserves to the states all powers not explicitly granted to the federal government. The Court decided for Missouri, but what was more significant is that in doing so, it went on to engage in a lengthy review of past cases focusing on state political functions, and then went to extraordinary lengths to expound a general view of state sovereignty. Not content to stop there, the Court went on to equate the importance of a balance of power between state and federal governments with the separation of powers within the national government and stated that this constituted a "double security" for the people. The Supreme Court has followed Gregory with a series of decisions buttressing federalism. The cases that follow illustrate the nature and extent of the resurgence.
New York v. United States 505 U.S. 144 (1992)
Just one year after Gregory, the Supreme Court announced its decision in response to a challenge from two counties and the State of New York against the Low-Level Radioactive Waste Policy Act, which, among other things, mandated that states or regional compacts that fail to provide the disposal of all low level radioactive wastes generated in the affected states by January 1, 1996, must take title to the waste if requested by the generator or owner of the waste. The Court stated that this "take-title" provision offered the states a "choice" between two unconstitutional alternatives. The first choice, accepting ownership of the waste, would allow Congress to transfer radioactive waste from generators to state governments which was dearly unconstitutional. The second choice, regulating according to Congress's instructions, would command state governments to implement legislation enacted by Congress. …