Leveraging Federalism: The Real Meaning of the Rehnquist Court's Federalism Jurisprudence for States

The Rehnquist Court has been credited with, or accused of--depending upon one's perspectivc--creating a revolution. Undoubtedly, the Rehnquist Court has dusted off seemingly long-forgotten federalism provisions in the Constitution and used them as the basis for invalidating numerous federal laws. This court has found limits to congressional power under the Interstate Commerce Clause of Article I (e.g., United States v. Lopez (1) and United States v. Morrison (2)), prohibited the federal government from commandeering states and reinvigorated the idea of state sovereignty under Tenth Amendment (e.g., New York v. United States, (3) Printz v. United States, (4) Mack v. United States, (5) and Alden v. Maine (6)), limited Congress's remedial authority under Section 5 of the Fourteenth Amendment (e.g., City of Boerne v. Flores, (7) Kimel v. Florida Board of Regents, (8) and Board of Trustees of the University of Alabama v. Garrett (9)), and advanced a broad theory of state immunity from civil lawsuits under the Eleventh Amendment (e.g., Seminole Tribe of Florida v. Florida, (10) Alden v. Maine, (11) College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board, (12) Kimel v. Florida Board of Regents, (13) and Board of Trustees of the University of Alabama v. Garretp (14)). These lines of cases have provoked a good deal of commentary on and off the Court. As Linda Greenhouse observed in the New York Times, [n]ot since the Supreme Court's resistance to the New Deal crumpled in the late 1930's has the court been so hostile to the exercise of federal power. (15) Of course, the federalism coin is two-sided. On the one side, a bust of federal power protrudes, while on the other, the contours of state power are etched. Nonetheless, the two sides are independent of one another, and in order to understand the meaning of the Court's federalism jurisprudence for states, it is essential to get a grasp on the impact of the Court's decisions on the national government--especially in Thus, understanding the meaning of the Court's federalism decisions for states requires a proper understanding of the relationship and interconnections among the Court's constitutional interpretations, congressional decision-making, and the role of states in the national lawmaking process. The first section of this essay briefly explores the target of the Rehnquist Court's federalism jurisprudence and argues that the main thrust of the Court's federalism doctrine has been to limit federal legislative powers, as opposed to building up state powers. However, the effectiveness of the Court's attempts to limit federal powers remains uncertain. The second section then explores the meaning of the Court's actions for states and contends that the Court's decisions are unilaterally bolstering state powers, but that the Court's jurisprudence may provide state and local governments leverage against the federal government if they assert themselves appropriately. The final section examines the limitations of the leading theoretical explanations of the Rehnquist Court's federalism decisions, most prominently manifested in the legal academy by the political safeguards versus judicial safeguards debate. I. FEDERALISM, THE REHNQUIST COURT, AND CONGRESS Although many commentators have discussed both sides of the federalism coin, for the most part, the Rehnquist Court appears to be more focused on limiting congressional powers than on bolstering state powers, suggesting to some that the Court is really engaged in a separation-of-powers battle. In the Washington Post, for example, Suzanna Sherry asserted that not since the New Deal has the Supreme Court so consistently set itself, and the Constitution, against Congress. (16) After the Court handed down its decision in Board of Trustees of the University of Alabama v. Garrett, (17) Linda Greenhouse wrote an article in the New York Times entitled simply: The High Court's Target: …