Two Cheers for Process Federalism

F OR some years now, the Rehnquist Court has been engaged in an attempt to revive the notion of judicially-enforceable limits on national power.Important and controversial decisions have reasserted outer limits to Congress' commerce power, 1 developed new doctrinal rules against the "commandeering" of state governmental institutions, 2 and vastly expanded the scope of state sovereign immunity.3 The staying power of this "federalist revival," 4 however, remains very much in doubt.Most of the relevant decisions are five to four, 5 and in many the more nationalist justices have openly avowed their intention to reverse course the moment that they gain an additional vote.6 While the result of the 2000 election would seem to decrease the odds of near-term reversals in the Court's jurisprudence, it seems a bit early to declare the federalist revival secure.It remains to be seen, in other words, whether cases like United States v.