First Among Equals (32 page)

Federalism challenges differ from era to era, and today a narrow majority of five justices regards as the challenge for our time the tendency of Congress to legislate on a great many subjects—too many, according to the majority's view of the Constitution. It surely appears to the Rehnquist majority that Congress acts as though its powers were not limited by the Constitution, as though it could legislate on any subject it chose.

The explanation for Congress's view lies, at least in part, in the history of the Court's treatment of the New Deal. During FDR's first term, the Court found several pivotal New Deal measures unconstitutional because Congress had exceeded its authority under the Commerce Clause or because it had violated the Tenth Amendment. But the Court famously changed its mind, starting in 1937, and declined to condemn New Deal legislation. In the process, it also read out of the Commerce Clause virtually any limits that provision might impose upon Congress, and it found the Tenth Amendment an empty one. In the ensuing decades, Congress legislated on more and more matters. The Court did not disturb this centralizing trend. Nor did many parties try to challenge it, their chances seeming completely nil.

Nonetheless, the trend was bound eventually to produce a response, and the source of that response was bound to be the increasingly conservative Republican Party. In his critical comments about the Court in 1968, Richard Nixon didn't mention federalism as such. His focus, as we saw in earlier chapters, was on law and order—the Warren Court's controversial criminal justice decisions. But it was not surprising that the justices he appointed proved receptive to challenges to the centralizing tendencies since the New Deal. In 1976—for the first time in four decades—the Court, with all four Nixon appointees in the five-justice majority, struck down an act of Congress on federalism grounds.

The case was
National League of Cities v. Usery.
At issue was a 1974 law that extended the maximum-hours and minimum-wage provisions of the Fair Labor Standards Act to most state and municipal employees. Congress had enacted the statute on the basis of its power to regulate interstate commerce. The Court did not find that Congress had exceeded its Commerce Clause authority, but instead held that the law violated the Tenth Amendment. Congress, said the Court, had unconstitutionally intruded into an “attribute of state sovereignty.”

Writing the Court's opinion was Nixon appointee William Rehnquist, who had long been known for his interest in a federalism that would reinvigorate the role of the states. But if the case demonstrated the difference it makes who sits on the Court, it did not start a trend. The case left unclear where the line should be drawn between permissible and impermissible federal intrusions upon the states. After a decade of efforts to clarify the distinction, the Court overruled
National League of Cities
in the 1985 case of
Garcia v. San Antonio Metropolitan Authority.

Here, too, the vote was 5–4. Nixon appointee Blackmun, who had voted with the majority in
National League of Cities,
wrote the Court's opinion. Blackmun set forth an understanding of what has been called “process federalism,” one in which the balance of power between the states and the federal government can be left, without need of judicial review, to the political process. “The Framers,” Blackmun wrote, “chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal government [such as that senators represent states] than by judicially created limitations on federal power.” The Tenth Amendment thus could not be construed by judges to limit what Congress might do. Nor could any of the enumerated powers, including the power to regulate interstate commerce in particular, be read to constrain Congress. “The political process,” wrote Blackmun, “ensures that [federal] laws that unduly burden the States will never be promulgated.”

The dissenters disagreed with Blackmun's view that state interests were adequately represented in the federal structure, pointing out that senators, thanks to the Seventeenth Amendment, are elected by the people of the states, not by their state representatives. They also invoked
Marbury v. Madison
to say that the Court must have a role in federalism disputes. Justice Rehnquist expressed hope that the Court would someday revive the principle of federalism it had upheld in
National League of Cities
but was now casting aside. “The Court today surveys the battle field of federalism and sounds a retreat,” wrote Justice O'Connor, then in her fourth year on the Court. “I share Justice Rehnquist's belief that this court will in time again assume its constitutional responsibility.” She was right.

Garcia
returned the law of federalism to where it had been before
National League of Cities
. But as I write, the law has shifted again, thanks to changes in the Court's membership. Since
Garcia,
six new justices have been appointed: Scalia and Kennedy (by Reagan), Souter and Thomas (by Bush), and Ginsburg and Breyer (by Clinton). Of these new justices just one, Clarence Thomas, has taken views of federalism at odds with those of his predecessor (Marshall). Thomas thus has facilitated the emergence of the five-justice majority in favor of federalism.

The Five Friends of Federalism are Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas; the Four Foes are Justices Stevens, Souter, Ginsburg, and Breyer. For years, the two sides have fought pitched battles over constitutional doctrine, and the majority has struggled mightily in search of coherent principles to justify its decisions. Justices in both camps have candidly observed the difficulty that the Court has had throughout its history in coming up with sensible, useful principles with solid roots in the Constitution itself. They have also fought the battle—defined by Blackmun in his
Garcia
opinion—over whether the Court has any role at all in enforcing federalism. The Four Foes have adamantly and consistently rejected the decisions of their five colleagues. Moreover, they have eagerly anticipated a reversal of those decisions. In the
Christy Brzonkala
case, Justice Souter, writing bitterly in dissent, taunted the majority by suggesting that their citadel of federalism would soon fall. And of course it could collapse when the next justice joins the Court—if that justice is willing to join the Four Foes and replaces one of the Five Friends.

The majority's critics are also found outside the Court. The majority stands accused of judicial activism. This charge is the most searing (other than an accusation of outright corruption or utter incompetence) there is, for the Court is said to be doing what it says, in its holdings, Congress is doing: acting at odds with the Constitution. Has the Court placed itself over the Constitution? Is it making itself the supreme law? Is it acting to suit its own desires and predilections? Such questions deserve an answer.

A 1995 case marks the beginning of the Court's much-debated effort to revive federalism. The social context of the case was and unfortunately remains a familiar one: gun-related incidents in and around schools. Such incidents were on the rise in the late 1980s, and Congress decided to investigate. It found that 4 percent of high-school students (and 6 percent of inner-city high-school students) carried a gun to school at least occasionally; that 12 percent of urban high-school students had had the unsettling experience of having had guns fired at them; and that 20 percent of city high-schoolers had been threatened with guns. Invoking its authority to regulate interstate commerce, Congress decided to address the issue by passing the Gun-Free School Zones Act, which made it a crime to possess a firearm in and around a school. Though no one much saw this as a problem at the time, Congress had, by passing the law, regulated an admittedly dangerous but decidedly local activity.

The challenge to the new law came from Alfonzo Lopez, a senior at Edison High School in San Antonio. An anonymous tipster told school authorities that Lopez had arrived at the school with a concealed .38-caliber handgun. The authorities confronted him, found the weapon, and turned him over to state law-enforcement officers, who in turn decided he should be prosecuted under the new federal law. But his lawyers thought his case belonged in state court, there being a state law covering the same matter, and the federal district judge agreed. (Note the irony: It is not the state but Lopez who challenged the law.) Eventually Lopez's case rose to the Supreme Court, and with the Friends and Foes of Federalism dividing 5–4, the Court held that Congress had exceeded its power under the Commerce Clause.

Lopez
marked the first time in over fifty years that the Court had found a federal law in violation of the Commerce Clause. As we mentioned in Chapter One, the clause has played a major role in our constitutional history. According to one scholar, the clause spawned more litigation between 1789 and 1950 than any other constitutional provision. The Court's first effort to interpret the clause came in 1824 with
Gibbons v. Ogden
(the case holding that New York's grant of a monopoly on steamship service across the Hudson River to New Jersey conflicted with federal law). During much of the nineteenth century, the Court was asked to review state regulatory initiatives challenged as unconstitutional burdens on interstate commerce. In the late nineteenth and early twentieth centuries, with Congress more frequently regulating the economy, the Court was asked the opposite question: whether new federal laws unconstitutionally burdened the states.

The key issue for the Court concerned the scope of the congressional power to regulate commerce “among the states.” The line the Court attempted to draw was between “interstate commerce,” on the one hand, and, on the other hand, state and local matters beyond the reach of Congress. The Court decided that Congress could regulate railroads that crossed state lines and criminalize the driving of a stolen car from one state to another. But the Court also decided that because some activities weren't “commerce,” Congress couldn't regulate them. These activities included manufacturing, agriculture, and mining. “Commerce succeeds to manufacture, and is not part of it,” the Court said in one case. And, in another: “Mining brings the subject matter of commerce into existence. Commerce disposes of it.”

The Commerce Clause wasn't the only part of the Constitution that stood in the way of national regulatory schemes. There was also the Tenth Amendment. Both parts of the Constitution were in play in the “sick chicken” case,
Schechter Poultry Corp. v. United States
(1935). At issue was the constitutionality of the National Industrial Recovery Act. Passed in 1933, the law was Roosevelt's first and most important response to the Great Depression. The far-reaching measure declared a national emergency and directed industry groups to draw up codes designed to lift wages and spur business recovery. Schechter Poultry in Brooklyn, New York, was found guilty of violating the wage-and-hour provisions of its industry's code and also of selling unfit chicken. Schechter's produce came from out of state, but the company sold it only in Brooklyn. It sued, and the Court unanimously agreed that NIRA was unconstitutional, a violation of the Commerce Clause (and also the Tenth Amendment). The Court drew a distinction between activities with direct effects on interstate commerce and those with only indirect effects: Congress may regulate the former but not the latter. Schechter Poultry, the Court concluded, was engaged in intrastate commerce.

Schechter Poultry
was among a series of anti-New Deal decisions that ultimately drove President Roosevelt to make an audacious proposal whereby the Court's membership would quickly increase to fifteen, the new members being ones he would get to appoint. FDR's court-packing plan was vehemently and widely criticized. It proved unnecessary, because within a month after he had proposed it the Court shifted course and began upholding New Deal initiatives. Retirements then gave FDR opportunities to appoint justices. Roosevelt filled the vacancies with appointees who shared his philosophy, and by 1941 the Court had revised much of its doctrine, on federalism especially. The Court abandoned its Commerce Clause distinctions between manufacturing and commerce and between direct and indirect effects. It embraced a much broader understanding of the clause: Congress may regulate any activity affecting commerce, whether directly or indirectly. Does the activity in question, the Court now asked, have a close, substantial relationship to interstate commerce? If so, Congress may regulate it.

But now, decades later in
Lopez,
the Court had finally said that Congress may not regulate. The case was not an easy one for the two justices so often in the middle on the Rehnquist Court, O'Connor and Kennedy. In a separate opinion, they made clear their anguish, even as they also made clear that they wanted a principled way to decide federalism cases. A New Deal case called
Wickard v. Filburn
(1942) summoned their attention. Roscoe Filburn lived in Ohio, where he had a small farm of twenty-three acres. Filburn had a herd of dairy cattle and some poultry, and sold milk, eggs, and poultry in nearby markets. He planted winter wheat on his farm, none of which he sold. Instead, he fed the wheat to his livestock and ground it into flour for his family. Filburn, however, ran afoul of a new federal regulation by planting twelve acres of wheat more than it permitted. The government charged him 49 cents each for the 239 bushels he had harvested from the twelve acres. Filburn sued, and it is not hard to understand his objection: He had more or less gardened in his own (large) backyard. Surely Congress had no power to regulate how much he needed to grow for his own family and his livestock. Surely what he did was “local” and not part of interstate commerce. Surely Congress lacked the power to regulate a situation like his.