Magazine article State Legislatures

A Defense of Federalism in Key State Cases

Magazine article State Legislatures

A Defense of Federalism in Key State Cases

Article excerpt

The Supreme Court this year displayed a resurgent interest in federalism as the justices for the first time in 60 years put the brakes on the power of Congress, while giving the states victories in the area of health care spending, welfare, school desegregation, prisoners' lawsuits and parole hearings. Like the new Republican majority on Capitol Hill, the talk at the Court suddenly focused anew on the proper balance of power between Washington and the states.

But the strongest assertion of support for state power came in the dissent to one of this year's notable setbacks, the 5-4 ruling that struck down the 23 state laws setting term limits for members of Congress.

"The ultimate source of the Constitution's authority is the consent of the people of each individual state, not the consent of undifferentiated people of the nation as a whole," wrote Justice Clarence Thomas, speaking for the dissenters in U.S. Term Limits vs. Thornton. "Because the people of the several states are the only true source of power, the federal government enjoys no authority beyond what the Constitution confers...As far as the federal Constitution is concerned, then, the States can exercise all powers that the Constitution does not withhold from them."

Thomas's defense of state power was signed by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia. The swing vote in the term limits case, Justice Anthony M. Kennedy, said he agreed that federalism is the unique feature of the American constitutional system, but he nonetheless concluded that terms for federal officeholders must be set at the national level, not by each state.

That setback for the states was offset by the remarkable ruling in U.S. vs. Lopez, which struck down the federal Gun-Free Schools Zones Act of 1990. It marked the first time since 1935 the high court has thrown out a federal law on the grounds that Congress exceeded its authority under the Commerce Clause. In recent decades, it has been repeated as a legal truism that Congress can legislate in any area where it believes doing so is in the national interest. Now, however, thanks to the Lopez ruling, that legal truism is no longer true.

"We start from first principles. The Constitution creates a federal government of enumerated powers," wrote Chief Justice Rehnquist for the 54 majority. He quoted James Madison's statement that the powers of the federal government "are few and defined," while those that "remain in the State government are numerous and indefinite."

Congress clearly has the power "to regulate Commerce ... among the several states," and that authority has been construed broadly to allow federal regulation of any activity "that substantially affects interstate commerce," the chief justice said. But that power has a limit, he added, and Congress crossed it when it decided to regulate by federal criminal law the routine act of possessing a gun near a school.

"In areas such as criminal law enforcement or education,...States historically have been sovereign," he wrote. "The possession of a gun in a local school zone is in no sense economic activity that might...substantially affect any sort of interstate commerce."

Rehnquist's opinion does not draw a clear and bright line on the reach of Congress's power, and it is not clear whether the ruling will be remembered as a one-time reminder to Congress or the beginning of a federalism trend. Unquestionably, however, the ruling will spur new legal challenges to federal laws on drug possession, abortion clinics and gun control, all areas where critics say Congress has overstepped its bounds.


The Court itself spoke out loudly on several other controversial subjects in its term that ended in late June. For the most part, federalism and the interests of the states fared well. Here are some of the other key rulings:

* The state may regulate hospital charges and impose surcharges on patients with commercial insurance. …

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