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Ouch! You're Hurting Us
How the Court Is Stifling Innovation at the State Level

The Washington Post
November 13, 2004
Douglas T. Kendall


The great Justice Louis D. Brandeis, who famously described states as the laboratories of our democracy, might well have welcomed the solutions to many of the nation's most pressing social and economic problems that have emerged from these laboratories in recent years. He would probably be less impressed, however, with the work of his modern counterparts on the Supreme Court, whose rulings have stifled state experimentation even while professing a commitment to protecting the dignity and authority of the states in the name of constitutional federalism .

Given the continuing possibility of bitter partisanship in Congress, where an energized Republican majority faces an unbowed Democratic minority, it is likely that states will continue to be the boldest actors across a range of policy initiatives. The Supreme Court's attitude toward their experimentation is every bit as important in shaping the direction of the country as its views on abortion and other hotly contested issues.

In recent years, dramatic developments in domestic policy have occurred at the state level. In health care, for example, numerous states (including Texas under then-Gov. George W. Bush) have enacted patients' bills of rights. Other states have created purchasing pools to bargain down the skyrocketing prices of prescription drugs. On Election Day, Californians passed an initiative directing billions of dollars toward stem-cell research; voters in Florida, Nevada and Wyoming passed medical malpractice and liability measures in an effort to safeguard the quality and control the costs of health care.

In the environmental arena, federal law is lagging behind state initiatives. Mercury pollution is most aggressively being eliminated in Massachusetts; the toughest controls on acid rain are in New York; California recently embarked on an effort to combat global warming, even as the Environmental Protection Agency has decided that carbon dioxide, the principal greenhouse gas, cannot be controlled at all under the federal Clean Air Act. Finally, it took a bold state attorney general named Eliot Spitzer and an obscure New York law called the Martin Act, rather than the Securities and Exchange Commission, to hold Wall Street firms accountable for the stock picks they offered American investors.

States have been acting as Brandeis described: crafting innovative solutions that can be replicated when successful and abandoned when they fail. The conventional wisdom, fueled by the court's opinions, makes the Rehnquist Court the protector of state prerogatives. It has, in a series of close decisions over the last 15 years, reworked significant areas of constitutional law with the professed purpose of advancing what it calls "Our Federalism." But the court is certainly not pro-state in terms of honoring what Brandeis called its "grave responsibility" to protect experimentation. More often than not, the Supreme Court has nipped it in the bud. In fact, the court's jurisprudence looks unfavorably on governmental innovation at all levels.

The most controversial aspect of the court's federalism has been its efforts to rein in the powers granted Congress under the Constitution's Commerce Clause and 14th Amendment. These efforts are necessary, the court argues, to prevent the federal government from intruding into areas traditionally controlled by the states. Quite frequently, however, states have supported the need for a federal role. In 2000, for example, the court struck down portions of the federal Violence Against Women Act although 36 state attorneys general had argued that they needed the federal law, leading Justice David Souter to quip that it is "not the least irony of these cases that the States will be forced to enjoy the new federalism whether they want it or not."

The states have also been clamoring for the court to reconsider its standard for judging when a federal law prevents state and local governments from legislating on the same subject, a practice known as "preemption." The states have asked the court to find preemption only when Congress says explicitly that it wants to eliminate state policymaking.

The court has largely turned a deaf ear to these requests. Just last term, for example, an 8-1 court majority blocked Southern California's effort to make the region's air cleaner through stricter emissions standards. The state's program was struck down despite ambiguity about whether Congress intended to prohibit the state from setting policy on this issue.

The court is protecting federalism both too much and too little -- too much, by striking down federal law where even the states recognize that a federal role is necessary to address a national problem; too little, by limiting state experimentation.

The court's rulings and Congress's ambiguity are not the only federal government obstacles to state experimentation. The Bush administration, while claiming to approve of the devolution of authority to the states, supported invalidating the Texas Patients' Bill of Rights, even though Bush backed the legislation when he was governor. This coming term, the administration has told the court that a Texas law that would hold herbicide manufacturers accountable to farmers is also preempted by a federal statute.

Unlike Congress or the executive branch, though, the court is supposed to be the neutral arbiter of battles between the federal government and the states. Several recent cases suggest that it may yet embrace that role. In a 2003 case challenging California's Holocaust Victim Insurance Relief Act, which required insurance companies to provide information about policies issued in Europe between 1920 and 1945, a dissenting coalition of Justices John Paul Stevens, Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas called for reforms to favor state experimentation. Evidence of such support from across the court's ideological spectrum signals that change may be on the way.

In briefs filed by state attorneys general over the last decade, the states have asked the Supreme Court to redefine its understanding of federalism. Federalism as explained by the states is about allocating power among the federal government and the states so as to improve the way government serves its citizens. This vision of federalism will not completely satisfy those who want the court to reduce federal power, nor those who urge the court to enforce every federal mandate. But the court's jurisprudence should not be about satisfying a political constituency; it should be about making our system work.

By listening more carefully to the states as it crafts its federalism jurisprudence, the Supreme Court could transform the most important legacy of the Rehnquist era from a source of polarization to a doctrine that will win broad support. If federalism is about protecting the states, the court should begin by listening to them.

Author's e-mail:
doug@communityrights.org


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Douglas Kendall is executive director of Community Rights Counsel, a public interest law firm that represents state and local governments in constitutional cases. He is a co-author of "Redefining Federalism," forthcoming from the Environmental Law Institute.

 

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