The Court Rediscovers Federalism

In 1985, U.S. Supreme Court abandoned any genuine effort to restrain federal government from usurping constitutional powers reserved to states. In his dissenting opinion for Garcia v. San Antonio Municipal Transit Authority, however, Justice William Rehnquist confidently predicted that federalism would time again command support of a majority of this Twelve years later, revival of federalism has become clearest legacy of Rehnquist Court. In U.S. v. Lopez (1995), for example, Rehnquist, now chief justice, reminded Congress that it cannot rely upon its constitutional power to regulate to ban mere possession of a gun in a school zone, unless it can clearly show that such conduct somehow involves commercial channels, instrumentalities, or interstate economic activity. This was first such notice of restraint in more than 60 years. Last year, Rehnquist and his colleagues again shielded sovereignty of 50 states by deciding that Congress cannot use its commerce power to subject states to lawsuits in federal court (Seminole Tribe of Florida v. Florida). These decisions, however, were a prelude. The Comeback In Supreme Court term that ended in June, justices resolved a number of prominent cases involving privacy rights, religious freedom, and other vital constitutional issues. Landmark decisions in their own right, they collectively revive federalist principles across a range of areas: Law enforcement. By a 5-4 vote, Court struck down Congress's attempt, under federal Brady Gun Control Act, to force local law-enforcement officials to conduct background checks on individuals seeking gun licenses. This provision of Brady Act was ultimate unfunded mandate. Under law, local sheriffs were pulled away from their assigned state and local duties in order to perform required background checks. Congress asserted that it could force state and local officeholders to assume this federal function under Supremacy Clause of Constitution. Not so fast, said Court. Writing for majority in Printz v. United Justice Antonin Scalia observed, Our constitutional system of dual sovereignty is fundamentally incompatible with conscripting state and local officials to carry out federal programs. The Supremacy Clause requires state and local governments to comply with federal laws that are consistent with Constitution, and so it merely brings us back to question of whether laws conscripting state officials violate Tenth Amendment. To answer that question, Scalia relied upon a careful examination of the historical understanding and practice of federal-state relations. Although federal government argued that earliest Congresses had required participation of state officials in implementation of federal a closer look demonstrated an utter lack of statutes imposing [such] obligations. When federal government fell back on Alexander Hamilton's more general observation in The Federalist Papers that the [national] government [might] employ ordinary magistracy of each [state] in execution of its laws, Scalia aptly responded that federal litigants missed Hamilton's critical assumption: The state had to give its consent. Justice Sandra Day O'Connor had laid groundwork for Printz decision back in 1992 in New York v. United States. Relying on a meticulous review of constitutional history, her majority opinion held that Congress lacked power to require states either to legislate on or take title to certain radioactive waste. States are not mere political subdivisions of United States, wrote Justice O'Connor. State governments are neither regional offices nor administrative agencies of United States. . . . Whatever outer limits of [state] sovereignty may be, one thing is clear: The Federal Government may not compel states to enact or administer a federal regulatory program. …