Same Old States' Rights Song: The Court's New Federalism Aims to Shrink Washington's Power
Schwartz, Herman, The Nation
Whether the Supreme Courts current assault on the federal government picks up even more steam will be determined by the November presidential election. During the next four years, there will probably be some vacancies on the Court. If Bob Dole becomes President, it is almost certain that he will pick Justices with the same antigovernment hostility that so many of the Reagan/Bush appointees have shown. His own antipathy toward government and his need to work with what will probably be a Republican Congress if he wins will insure that. With all three branches in the hands of the extreme right, todays tilt toward the rich and powerful would be carved into the Constitution itself.
Since William Rehnquist became Chief Justice, in 1986, conservatives on the Supreme Court have labored mightily to revive the Courts pre-new Deal hostility to federal action. The primary target of Rehnquist and his allies has been the commerce clause of the Constitution, which authorizes Congress to regulate those aspects of life that affect the national economy. The first attack on Congressional control of the economy came in 1976, in a 5-to-4 decision that exempted states from having to comply with the minimum wage/maximum hours provisions of the Fair Labor Standards Act with respect to their own employees (National League of Cities v. Usery). In Rehnquist's sweeping and imprecise opinion, which Justice Harry Blackmun hesitantly joined, the Court ruled that traditional government functions,, were not subject to Congressional regulation under the commerce clause. Unhappily for the conservatives, the "traditional government functions" concept is so ambiguous that the lower courts found it unworkable. After nine years of confusion, Justice Blackmun switched and joined the four original dissenters to overturn the 1976 decision.
Six years later, strengthened by the arrival of Reagan/Bush appointees, the conservatives returned to the attack. In 1991 Justice Sandra Day O'Connor delivered a lengthy paean to the states in a case narrowly construing the Age Discrimination in Employment Act. The next year, a 6-to-3 majority invoked states, rights to strike down a federal plan for disposal of low-level radioactive waste that the states themselves had originally proposed (New York v. United States). Several lower courts promptly used this decision to strike down the Brady gun law, an issue that is currently before the Supreme Court.
The most significant blow to federal power came last year in U.S. v. Lopez. A 5-to-4 majority of the Court ruled that the commerce clause did not authorize Congress to ban guns near schools. It was the first time in sixty years that the Court had denied Congress power under the commerce clause to regulate private activity, the prior cases involved state actions. Within months, laws on paternal support for children, arson and other matters were struck down on the authority of the Lopez decision. More such rulings by Reagan/Bush appointees in the lower courts are inevitable.
The Court's most recent weakening of federal authority under the commerce clause came this past term, on behalf of one of the most pernicious and anachronistic of legal doctrines: "The King can do no wrong." In another 5-to-4 ruling in March, the conservative majority ruled that the Eleventh Amendment to the Constitution prevented Congress from using the commerce clause to allow a Florida Indian tribe to sue that state for failing to bargain in good faith over the operation of gambling casinos on Indian land (Seminole Tribe of Florida v. …