The Supreme Court vacancy that opened up with the surprise
retirement of Sandra Day O'Connor has already started a battle
over the fate of some of the defining principles of the Rehnquist
Court. One of those core principles, and one that some commentators
have already declared endangered, is federalism, defined by
the Court as a brake on the power of the federal government
to protect areas of exclusive state sovereignty. After the
decision in Gonzales v. Raich, which upheld the federal
government's Commerce Clause authority to seize home-grown,
freely exchanged, state-sanctioned medical marijuana, it may
have appeared that federalism was in retreat.
But perhaps the Court is not backing away from federalism;
perhaps it's reshaping it. Looking at Raich in conjunction
with Bates v. Dow Agrosciences, an important Supremacy
Clause case, and a line of cases under the Takings Clause
(full disclosure: our law firm filed amicus briefs in three
takings cases this term, plus Raich) there is evidence
that the Court is moving away from federalism as an ideological
weapon and towards federalism as a neutral principle.
The key to making sense of the Court's federalism decisions
is the states. For years in Supreme Court briefs, the states
have told the Court that it protects federalism too much by
striking down, often over the objection of the states, laws
that address national problems--and that it protects federalism
too little, by aggressively striking down state laws based
on dubious readings of the Supremacy or Dormant Commerce clauses.
Now, a decade after the beginning of the federalism revival,
it seems that the Court is finally starting to listen.
The best example is Bates v. Dow Agrosciences, a case
dealing with pesticides decided in April. Every member of
the Court agreed that a manufacturer's compliance with federal
pesticide labeling requirements does not automatically immunize
it from suits based on state laws. Throughout the Court's
federalism revival, the states have been forcefully arguing--to
no avail until now--that if the Court is serious about protecting
federalism it needs to significantly revise Court-created
preemption doctrines, which result in the invalidation of
state and local laws even when the interference with federal
objectives is far from clear. These arguments in the past
have drawn support only in dissents joined consistently by
the odd threesome of Justices Stevens, Ginsburg, and Thomas.
These justices have called for the Court to jettison its free-ranging
inquiry into whether to find implied preemption of state law
in a federal statute because state law represents an obstacle
to federal objectives. In Bates, there is evidence
that a majority on the Court is now convinced that changes
to preemption doctrines are necessary.
The federalism principle recognized in Bates is that
the Court should first "do no harm." A Court that
wants to defend the important role of states in our federal
structure should begin by eliminating Court-created doctrines
that result in invalidation of state and local initiatives
without clear evidence of interference with federal objectives.
A similar point could be made about the Court's takings cases
this term. These cases, Chevron v. Lingle, San Remo
v. San Francisco, and Kelo v. New London, are not,
strictly speaking, federalism cases, because the Takings Clause--like
other provisions of the Bill of Rights--is not about the division
of government power, but rather a check on all governments
equally. The Takings Clause says that a government can take
private property if it is for a public purpose and if it provides
the owner with just compensation. Most takings cases consider
whether a land use regulation is so burdensome that it amounts
to a taking of a person's property, requiring just compensation.
A few cases ask whether a taking of property is actually for
public purposes (as in Kelo). Since state and local
governments make most land use regulations and are involved
in most land condemnations, the burden of a broad construction
of the Takings Clause falls disproportionately on these governments,
and the Court has in the past imposed barriers on state and
local innovation that were not justified by the text or history
of the Constitution.
This term's takings rulings, in contrast to cases from the
late 1980s and early '90s, all supported state and local experimentation.
In Lingle the court upheld a Hawaii rent control statute
for gas stations enacted in part as a response to Hawaii's
unique geographic and market circumstances. San Remo
preserved the integrity of state courts in takings cases and
turned back the effort to make federal courts into zoning
appeal boards with fancier trappings. Finally, in Kelo,
the Court "decline[d] to second-guess" both New
London's decision about the wisdom of its plan to reverse
its decades-long economic decline and the way it chose to
implement that plan.
Which brings us to Raich. For the sometimes abstruse
purposes of constitutional analysis, Raich was not
a case like Bates about whether state and federal laws
were compatible or conflicting (so-called preemption cases).
Instead, Raich was about the extent of Congressional
power under the Constitution. The Court upheld federal regulation
of private, intrastate, non-commercial cultivation and possession
of relatively small amounts of marijuana intended for medicinal
use. (Technically, it did not overturn the California law
allowing medical marijuana.) Raich thus represented
a serious blow to any effort to define federalism in a way
that reserves large spheres of activity exclusively to the
authority of the states. One might expect that the states
would have pleaded with the Supreme Court to keep the heavy
hand of the federal government's drug-enforcement bureaucracy
out of state business. And indeed, six states--Alabama, Louisiana,
Mississippi, California, Maryland, and Washington--did make
such a request.
But the silence of the other 44 states, and the absence from
the case of all the major associations representing state
and local governments, reflects states' longstanding ambivalence
about Court rulings that prevent the federal government from
participating in problems that are truly national. In some
cases, states have wholeheartedly supported federal involvement.
For example, 36 states in United States v. Morrison
argued in favor of broad federal authority under the Violence
Against Women Act (VAWA). The states explained that the VAWA
did not undermine, but rather complemented, state efforts
to control violence against women, and admitted that the states
had been unable to address the problem adequately on their
own, so needed federal help. The states' arguments did not
prevail, leading Justice Souter in dissent to quip that "[i]t
is, then, not the least irony of these cases that the [s]tates
will be forced to enjoy this new federalism whether they want
it or not."
Raich was less a blow to state sovereignty than an
endorsement of a federal government that has the power to
solve problems that bedevil all states. A loss for the federal
government in the case would have constricted Congress's power
under the Commerce Clause--and thus would have undermined,
perhaps fatally, other laws based on the Commerce Clause,
such as those protecting civil rights and the environment.
We think few states would approve of such an outcome.
Instead, states have a vision of federalism as a neutral principle,
not a zero-sum game or a forced choice between national authority
and state and local experimentation. Like so many other aspects
of our constitutional system, federalism requires a careful
balance between the prerogatives of different levels of government.
This term the Court has struck that balance more often than
DOUGLAS T. KENDALL is Executive Director of
Community Rights Counsel, a public interest law firm that
filed amicus briefs in support of state and local governments
in Lingle, San Remo, and Kelo and for the federal government
in Raich. JENNIFER BRADLEY is Federalism Project Director
at Community Rights Counsel.
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