Federalism Revived? The Printz and City of Boerne Decisions
The following program was sponsored by the Federalism and Separation of Powers Practice Group at the Captial Hilton on Friday, October 17, 1997. Panelists included Professor John Duffy, Cardozo Law School; Greg Katsas, Esquire, Jones, Day, Reavis and Pogue; Honorable Bill Pryor, Alabama Attorney General; Jeffrey S. Sutton, Esquire, State Solicitor of Ohio.

In order to fit the program into this newsletter, and to take account of the greater formality typically associated with the written word, each speaker’s remarks have been edited and revised to fit this format. (Editor’s note.)

Mr. Jeffrey S. Sutton (moderator): Federalism is a hot topic, at the Supreme Court, at the States, and at the Federal Government, especially in light of five decisions during the last five years: New York v. United States; United States v. Lopez; Seminole Tribe v. Florida; and then mostly recently, during the Supreme Court's last term, the City of Boerne v. Flores decision and the Printz v. United States decision.

I think we have a great panel today, which presents at least three different perspectives on this issue. We have an academic, a private practitioner, and two representatives of the States.

Our first panelist is Professor John Duffy, who teaches primarily administrative law at the Cardozo Law School. John clerked for Justice Scalia, before that for Judge Williams, and also worked at the Office of Legal Counsel here in Washington. John is going to focus on the Printz decision.

Greg Katsas, a lawyer at Jones, Day, Reavis and Pogue here in Washington, will follow John. His topic will focus more on the City of Boerne decision. Greg clerked for Judge Becker and then Judge Thomas and then Justice Thomas on the U.S. Supreme Court.

Following Greg will be the Honorable Bill Pryor, the Alabama Attorney General. General Pryor formerly was the Deputy Attorney General, which put him in charge of all civil and constitutional litigation in the State of Alabama, and before that, was in private practice.

And proving that we can be a little hypocritical when it comes to separation of powers, I will be both moderating and speaking when it comes to this panel.

I am currently the Ohio State Solicitor and clerked for Judge Meskill on the Second Circuit and Justice Powell and Justice Scalia on the U.S. Supreme Court.

If we could start with John.

Professor John Duffy: Thank you Jeff. My talk today is on "Printz, Textualism, and Federalism." But before I turn to Printz, I would like to make brief mention of what I saw was the most important point in City of Boerne, and that is that no Justice would defend—or at least defend in writing—the view that Congress's Section 5 power "to enforce" the provisions of the 14th Amendment could be used to expand the rights in the Amendment. Indeed, seven Justices affirmatively agreed on the limits of the Section 5 power.

To me, City of Boerne seemed like the triumph of the power of textualism. While the text does not answer every question, it does provide some fixed points, some structure to the legal inquiry. "To enforce" simply does not mean "to expand upon," and the victory for textualists in City of Boerne was that no Justice was audacious enough to dispute that point—a respect for text that just two decades ago I think would have been impossible.

Indeed, it is worth noting that the dispute that did divide the Justices in City of Boerne, the meaning of the phrase "free exercise" in the religion clauses, is a dispute that the text itself invites. For while it is plain that the clause confers a right, it is also quite plain that the text is vague. To a textualist, neither side of the debate on the meaning of the free exercise clause is illegitimate, at least fundamentally illegitimate, and it is not an embarrassment to textualism—which establishes merely a necessary condition for interpretive legitimacy—that the analysis can predict the difficult problems of interpretation without itself resolving all of them.

Now, if City of Boerne seemed like a victory for textualism, Printz seemed like a nadir. Indeed, Printz begins with a troubling concession by Justice Scalia, that "there is no constitutional text speaking to this precise question." And so the majority opinion asserts that "the answer to the [plaintiff's] challenge [to the Brady Act] must be sought in the historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court...in that order."

Well, for a textualist, this is not an auspicious start. True, arguments based on the structure of the Constitution are based on text, at least they are if they are done properly and not just done based on pure assertion. But such arguments are relegated to a second seat in Printz's hierarchy. Printz places such arguments, thankfully, somewhat above the jurisprudence of the Supreme Court, but, unfortunately, somewhere below historical understanding and practice. This is heresy for a textualist: An innovative law shouldn't be unconstitutional merely because it alters "historical practice"; it should be unconstitutional only if it conflicts with something in the written Constitution.

So this is the way I approached Printz, uneasy with its apparent departure from the text, although I must admit I found the result in the case appealing. The rule that the Federal Government shouldn't be able to direct State officers does seem logical, and it also provides a nice bright line.

But I think, in fact, the result in Printz is justified by the text of the Constitution, and the textual justification is in Justice Scalia's opinion. To see this point, it is first worth asking whether Congress could have required gun dealers themselves to conduct reasonable background checks of their customers. The dealers could accomplish this by requesting whatever information their State makes available to the public, or, perhaps if the federal regulations were more burdensome, by hiring a private investigating firm to check out their customers.

Setting to one side any Second Amendment concerns, the question would be whether such a law is unconstitutional on the theory that the Federal Government was impressing the gun dealers into the service of the Federal Government. Well, the answer is clearly no. Assuming that the sale of the gun constitutes interstate commerce (and for a moment, I'll also set aside Justice Thomas' concerns expressed in his concurrence in Printz), then the statute is merely regulating interstate commerce by imposing a duty on the individuals engaged in such commerce. This is all quite traditional and well within the textual limits of Congress’s powers. It is on the same footing as a law that requires sellers of livestock to inspect for disease before selling in interstate commerce.

This first simple hypothetical is valuable because it reveals an important difference between the gun dealers and State officers such as Jay Printz. In selling guns, the dealers are engaged in interstate commerce. In refusing to do background checks, the State officers aren't engaging in any commerce at all, so Congress can't rely solely on its interstate commerce power.

For a textualist, the legal issue then becomes whether the regulation of the duties of State officers is within the "Necessary and Proper" Clause of the Constitution. This issue is actually discussed in Printz, though it is buried in the middle of Justice Scalia's opinion and then only as a response to Justice Stevens' dissent. Nevertheless, Printz holds—correctly, I believe—that the regulation of State officers is not a "proper" law for "carrying into execution" the enumerated powers of Article I, Section 8. On this point, Justice Scalia cites an article by Gary Lawson and Patricia Granger which argues that the word "proper" in the Necessary and Proper Clause provides the correct textual foothold for judicial decisions invalidating Congressional legislation that violates the basic structural features of the Constitution, including federalism.

The Lawson/Granger article is a fine piece, and I commend it to your attention. But Printz could also have cited McCullough v. Maryland, which does not read the Necessary and Proper Clause simply as carte blanche, but instead states, "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and the spirit of the Constitution, are constitutional." And the textual analysis can go beyond just looking to the word "proper." Let me introduce a second hypothetical. What if Congress has imposed the duty of conducting the background checks not on State officers, but on the local U.S. Attorney? This law seems quite obviously constitutional. But why?

The Framers didn't leave this to chance, for they expressly conferred on Congress a legislative jurisdiction over the departments and officers of the Government of the United States. Not so coincidentally, this power is in the Necessary and Proper Clause, which provides in its entirety that the Congress shall have power "[t]o make all Laws which shall be necessary and proper for carrying into the Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The Constitution vests the executive power in the President, and the Necessary and Proper Clause (along with a few other clauses in Article II that I won't mention right now), gives Congress the power to carry into execution that power by imposing legal duties on particular executive Departments and Officers. Of course, the text indicates that even this power has its limits, but the important point for Printz is the absence of any corresponding power over State officers. This is, of course, an expressio unius argument, which, while not conclusive, clearly suggests a direction for interpreting the word "proper" within the clause.

One final piece of textual support is found in Article I, Section 10, Clause 2. This clause seems to be an exception that helps prove the rule. It subjects all State laws respecting Imposts or Duties on Imports and Exports "to the Revision or Controul of the Congress." This clause gives to the Congress exactly what New York v. United States held that the Commerce Clause does not—a legislative jurisdiction in Congress over State legislation. And once we determine that the result in New York v. United States is correct, then the result in Printz is hard to resist, because it is hard to draw a proper line between legislative power and executive power.

Based on all this, I would suggest that the statement early in the Printz opinion—that "there is no constitutional text speaking to this precise question"—was unnecessarily apologetic. There is constitutional text, a lot of it, speaking to the question of Congress' proper legislative powers, and to the extent that there is no precise constitutional text conferring a general legislative power over State officers, that is a powerful argument for the majority's result in Printz.

With this light on Printz, we can see both that decision and City of Boerne as continuing an important trend in the Supreme Court's case law. The Court is reentering the business of carefully interpreting the clauses in the Constitution that grant Congress power. After the 1930's, I think the Court was, frankly, scared to do this. Almost any argument tying legislation to a congressional power, particularly to the Commerce Clause, would suffice. Now we can see that this nearly complete deference is at an end. Just as City of Boerne takes Section 5 and its limits seriously, so too do New York v. United States, United States v. Lopez, and Printz take the Commerce Clause and the Necessary and Proper Clause seriously. And this enterprise—interpreting the enumerated powers with care—is a textually rigorous way to protect federalism.

There is, however, another method to protect federalism. It is based on—and this is a quote from Printz—"the underlying postulates" of the Constitution. This method can be seen in Printz, but is best reflected in Seminole Tribe v. Florida, which ignored the words of the Eleventh Amendment in favor of some unwritten postulates that lurked somewhere, "behind the words of the Constitution".

This "unwritten postulates" method can also be seen in National League of Cities v. Usery which began its analysis with the concession that the Commerce Clause power was a "grant of plenary authority to Congress," but then derived a special exemption from that "plenary authority" for the States.

Well, from my description of the two methods, you can guess that I favor the textual method, and I urge all true Federalists to do the same—to embrace the Court's rediscovered enterprise of interpreting the congressional powers faithfully and to think of decisions like Printz, New York v. United States, and City of Boerne, not as cases based solely on "underlying postulates" of federalism, but as based on the textual limits of congressional power. The alternative—federalism built on special unwritten exemptions and unwritten immunities for the States—will be no more hearty than the decision in National League of Cities. And, moreover, such a federalism of exceptions for the States doesn't restore any real federalism: So what if the States have a special exemption from federal regulatory power, if all real power remains located in Washington.

But the most important reason for adopting a textualist approach is that it is the right approach. It is the Framers' approach to federalism; it is the Constitution's approach to federalism. It restores the federalism that James Madison spoke of in Federalist No. 45 when he argued that federal authority would not be dangerous to the States' retained authority because, "[t]he powers delegated by the proposed Constitution to the federal government are few and restricted."

Thank you.

Mr. Greg Katsas: My general topic today is Section 5 of the Fourteenth Amendment which authorizes Congress to "enforce" the Due Process and Equal Protection provisions of Section 1 of the Fourteenth Amendment.

My specific topic is the impact of the Supreme Court's decision last term in City of Boerne v. Flores, which held that the Religious Freedom Restoration Act ("RFRA") was not authorized by Section 5, the first time in almost three decades that the Court has invalidated any congressional statute on that ground.

My principal theme is that City of Boerne's treatment of Section 5 is somewhat similar to the Court's treatment of the Commerce Clause a few terms ago in United States v. Lopez, the 1995 decision that held for the first time in almost six decades that a congressional statute was unauthorized by the commerce power.

Specifically, I think there are three similarities between Section 5 in City of Boerne on the one hand, and the commerce power in Lopez on the other.

First, the Court in City of Boerne confronted a terrible body of prior jurisprudence suggesting strongly that the Section 5 power was, for all practical purposes, unlimited.

Second, the Court took somewhat seriously in City of Boerne, as it had previously in Lopez, the doctrine of enumerated powers and the proposition that the federal powers were in fact limited. The Court recognized those limits in these cases and, indeed, it struck down particular statutes for exceeding those limits.

Third, nonetheless, despite that improvement, the Court reaffirmed in both cases the broad substantive scope of the powers at issue, and also the significant degree of deference due to Congress in determining whether particular statutes exceed the scope of those powers.

The net result is that after these decisions, we are left with a federal government that is much larger than the one envisioned by the Framers of the Constitution and of the Fourteenth Amendment, but still, at least, a federal government of limited powers.

To understand City of Boerne itself, I think you need to go back to the prior Section 5 jurisprudence which consists primarily of four cases in the voting rights area decided by the Court between 1966 and 1980: South Carolina v. Katzenbach, a 1966 case which upheld Congress' power to suspend literacy tests in the South; Katzenbach v. Morgan, another 1966 case in which the Court upheld the power of Congress to ban literacy tests for Puerto Ricans educated in Spanish; Oregon v. Mitchell, a 1970 case in which the Court upheld Congress' power to suspend literacy tests nationwide; and, finally, City of Rome v. United States, a 1980 case in which the Court upheld the use of an effects test for pre-clearance requirements imposed under Section 5 of the Voting Rights Act.

Now, what is important is that none of the state voting practices at issue in any of these cases was itself unconstitutional. In Lassiter v. Northampton Election Board, the Court had upheld the use of literacy tests such as those at issue in the South Carolina case, the Morgan case, and the Oregon case. And, finally, in Washington v. Davis, the Court had held that the Equal Protection Clause reaches only intentional racial discrimination, not facially neutral practices that have a disparate impact on one racial group or another. The state practice at issue in City of Rome was of the latter sort.

Now, as an original matter, you might think that if none of these state practices is itself unconstitutional under Section 1, and if Section 5 merely gives Congress the power to "enforce" rights protected under Section 1, then Congress could not categorically prohibit any of these practices.

The voting cases, of course, tell a very different story. They establish beyond doubt that Congress, under Section 5, can prohibit conduct that is not itself unconstitutional under Section 1, under either of two possible theories, both—as applied in the voting cases—extremely broad.

The first of these theories is what one might call a prophylactic remedy theory, stressed by the Court in the City of Rome case, in which the Court held that Congress can use any rational means to implement the Section 1 constitutional protections. The Court reasoned that if Congress finds that case by case adjudication under a constitutional standard is insufficient to protect the constitutional rights at issue, then Congress itself can impose prophylactic rules that range much more broadly than does Section 1 itself.

The Court applied that rationale in City of Rome to uphold enormous intrusions into state voting structures, even absent any close link with intentional discrimination by the city in that case.

In City of Rome, the federal government barred the city from electing commissioners by majority rather than by a plurality, even though the Constitution itself requires a majority rule in the electoral college, of course, for presidential elections. The federal government in City of Rome also barred the city from using large districts to elect its commissioners, the very approach that is constitutionally compelled for election of United States Senators, and the very strategy recommended by Madison in Federalist No. 10 to combat the problem of faction.

The record in the City of Rome case suggested that the city had not engaged in unconstitutional intentional discrimination for almost two decades. The Court sanctioned the federal government’s serious intrusions with no apparent consideration for the intrusiveness of the federal response, the extent of any constitutional violations, or the importance of the state interests at stake.

If City of Rome was bad, Morgan was worse. In that case the Court suggested that Congress has the power to go beyond Section 1, not just on a prophylactic remedy theory, but that Congress actually has the power to redefine the substance of the constitutional protections under Section 1. And if that sounds inconsistent with Marbury v. Madison, it is, but nonetheless, it was at least a plausible statement of Section 5 law prior to City of Boerne.

In City of Boerne itself, the Court addressed the constitutionality of the Religious Freedom Restoration Act, a federal statute which required states and the federal government to create exemptions from neutral laws of general application in order to accommodate specific religious practices of particular individuals, even though the Court itself, a few years earlier, in Employment Division v. Smith, had held that such accommodation was not constitutionally compelled. The Court held that this statute was not authorized under Section 5.

In City of Boerne, the Court either established or reaffirmed four important propositions. First, Congress cannot redefine the substantive scope of Section 1. The Court clearly rejected the substantive theory of Morgan, reasoning straightforwardly that the text of Section 5, which speaks of enforcement, is simply not consistent with the suggestion that Congress can redefine the substantive scope of constitutional protections.

Second, with respect to the remedial theory, the Court reaffirmed that Congress can, under Section 5, prohibit conduct that is not itself unconstitutional under Section 1. The Court thus rejected a narrow reading of enforcement as referring only to providing for judicial or administrative action.

But, third, and most important of all, the Court said that in order to be remedial in the required sense, the statute must exhibit congruence and proportionality between the constitutional violations at issue, and the means adapted to that end. And in that concept, we see a significant cutback on some of the implications of City of Rome, where the Court seemed unconcerned with any sense of proportionality at all.

In City of Boerne, the Court held that RFRA was so out of proportion to any plausible record of intentional religious discrimination, which is what Smith required to establish constitutional violations, that the statute simply could not be understood in any remedial terms.

The Court contrasted RFRA to the voting cases, noting that in the voting cases, there was much more evidence of unconstitutional discrimination than there was evidence of unconstitutional religious discrimination in the RFRA context.

Fourth and finally, the Court reaffirmed the principle in the earlier cases that Congress has "wide latitude" in choosing remedial measures under Section 5. The Court, however, did not give much guidance as to how one would determine the point at which the statute goes too far or, in City of Boerne’s terms, the point at which it becomes disproportionate to any appropriate remedial response. Instead, it conveyed a sense that if RFRA were constitutional, then there would be no limits.

Briefly, I wish to make three points concerning the implications of the City of Boerne decision. First, with respect to RFRA itself, I think it is an open question whether RFRA survives as applied to federal action versus state action. The question is not addressed in the decision, but I think you could make at least a decent argument that it is permissible for Congress to restrain the federal government’s assertion of its own powers in that way.

Second, can the application of RFRA to the states be upheld under the commerce power? Three years ago I think one would have had to say yes. But that brings us back to the Court's decision in Lopez, which drew a fairly sharp distinction for Commerce Clause purposes between legislation that, on its face, addresses economic activity, and legislation that, on its face, addresses other kinds of activity. Lopez strongly suggested that the very broad, modern, Commerce Clause doctrines have either no application or at least lessened application with regard to statutes such as RFRA that address, on their face, non-economic activity.

I think it is plausible that the Court would find the same vices in RFRA under the commerce power that it found in the Gun-Free School Zone Act in Lopez itself. But there is a lot of broad Commerce Clause precedent and some uncertainty in just how far Lopez goes, so it seems we can't make that prediction with a high degree of confidence.

Third, City of Boerne raises questions about the extent to which other statutes will survive Section 5 review. In that case, Professor Laycock filed a brief essentially telling the Court that if you strike down RFRA, you will put a great number of other statutes at risk, including a large number of statutes that replace a constitutional intent test with a statutory effects test.

Given what the Court did in City of Boerne, that might or might not be true. I think that in future cases you will see the Court balancing the extent of the constitutional violations at issue against the breadth of the legislative response. That does not give us a very bright line—and perhaps not a very principled line—but given a choice between that sort of world, and a world where there is a bright-line rule that federal power is unlimited, I think most of us would agree that we are now better off.

General Bill Pryor: Good afternoon. It is a real pleasure to speak to a Federalist Society Conference in D.C. Sometimes I kid my friends in the South that I am the Johnny Appleseed of the South for Federalist Societies. I founded the Tulane Chapter in 1985 and with Harvey Koch's help, started the New Orleans Lawyers Chapter in '87, the Birmingham Lawyers Chapter in '89, and, more recently, the Montgomery Lawyers Chapter.

When I was a law student in the mid-1980s, my Tulane professors lectured that federalism and the notion of the 10th Amendment as a limitation of federal power died with the decision of the Supreme Court in Garcia v. San Antonio. In their dissents in that case, however, Chief Justice Rehnquist and Justice O'Connor predicted otherwise, and they were vindicated in this last term. Now we know that my law professors, fortunately, were what I always thought they were—wrong.

But I have a warning: do not uncork the champagne yet for there is still much work to be done and much cause for concern.

I would like to give somewhat of an overview of where we have been, where we are now, and where we may be going in this area, but I take a little broader view of federalism than perhaps we have been speaking about here, and think that we must include, not only the cases that rely explicitly on the 10th Amendment, and the Commerce Clause, and the 11th Amendment but also the cases where the Court intruded upon traditional state authority by creating individual liberties with no basis for doing so.

To understand where we are, we must know how we got here. The current trend of federalism decisions began several years ago. In Gregory v. Ashcroft, for example, the Court held that the Age Discrimination in Employment Act did not prohibit the State of Missouri from requiring the retirement of state judges at age 70. Justice O'Connor wrote for the court a provocative statement, though it sounds axiomatic: "As every schoolchild learns"—that is to be distinguished from every law student—"our Constitution establishes a system of dual sovereignty between the state and federal government. Through the structure of its government and the character of those who exercise governmental authority, a state defines itself as a sovereign." The Gregory Court reasoned that the mandatory retirement age for state judges in Missouri was an important provision in the structure of the state government that could not be overridden by Congress at least without a plain statement of that intention.

A year later, in New York v. United States, the Court ruled that Congress lacked the power to commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program. Law professors such as Mark Tushnet still predicted that the New York case was, "unlikely to be the foundation of a useful constitutional law of federalism."

Three years after New York, of course, came United States v. Lopez and Missouri v. Jenkins. In Lopez, the Court did not rely upon the 10th Amendment, but held that the Gun-Free School Zones Act case exceeded Congress' authority under the Commerce Clause, perhaps the most provocative development yet. In Jenkins, the Court held that a Federal District Court had exceeded its remedial authority in an 18-year-old school desegregation case. The Jenkins Court concluded that the ultimate inquiry is whether the state has complied in good faith with the decree and eliminated the vestiges of discrimination to the extent practicable.

Then, in the 1995 term came Seminole Tribe v. Florida. In that case, the Court held that Congress could not abrogate the sovereign immunity of a state, as protected by the 11th Amendment, when the power that Congress sought to exercise derived from the Commerce Clause.

Printz finally disproved Professor Tushnet's prediction regarding the New York case. In Printz, the Court held that Congress could not commandeer state officials in the enforcement of the Brady Handgun Law, and Justice Scalia explained for the Court that this holding followed directly from the reasoning of New York.

In City of Boerne v. Flores, the Court held that Congress could not create civil rights enforceable against the states by relying upon Section 5 of the 14th Amendment.

Printz and Boerne were certainly important. But there were a few other decisions in this term that were also important in terms of federalism. Two decisions were Washington v. Glucksberg and Vacco v. Quill, in which the Court upheld unanimously the authority of the States of Washington and New York to proscribe the assistance of suicide. In so doing, the Court limited the meaning of a radical sentence in the decision of Planned Parenthood v. Casey, where the Court reaffirmed its creation of a right to abortion, by stating, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Had the Court affirmed the decisions of the Ninth Circuit and the Second Circuit in these two cases, the Court would have, of course, swept aside long-standing laws of more than 40 states which prohibit the assistance of suicide.

Finally, the Court gave the states more breathing room in church-state relations in Agostini v. Felton, by ruling that public school teachers could be sent into parochial schools to provide remedial education. The Court overruled its 1985 decision in an earlier generation of the same case.

I have two warnings about these decisions. First, let us not forget the bad decisions of the Court over the last few years. In the 1992 case of Planned Parenthood v. Casey, the Court preserved the worst abomination of constitutional law in our history. Indeed, the radical language of the Casey decision led directly to the confusion in the lower courts about assisted suicide laws.

In some contexts the Court has been both anti-democratic and insensitive to federalism. In 1995, the Court deprived the people of each state the right to limit the terms of their Congressmen. A year later, in the name of the 14th Amendment, the Court overturned the vote of the people of Colorado, who amended their state constitution to prohibit special privileges or rights for homosexuals. And in the same term, the Court ruled that the people of Virginia were somehow prohibited by the 14th Amendment from maintaining an all-male military academy. Even the Chief Justice concurred, never mind that for more than a century after the 14th Amendment was enacted both the federal government and many state governments maintained all-male military academies. Never mind the fact that the people of the United States did not ratify the Equal Rights Amendment. We now have new rules of political correctness for decision making in the equal protection arena.

The second warning I offer is to count the votes. Gregory v. Ashcroft, where much of the federalism work began, was a 5 to 4 decision. New York, a year later, was 6 to 3, with Justice Souter then in the majority. Lopez, where the Court finally limited the reach of the Commerce Clause, was a 5 to 4 decision. Seminole Tribe was 5 to 4. And in this term, Printz was decided by a 5 to 4 vote.

Before we celebrate the triumph of federalism, we also need to see how the Court will apply its recent good decisions. First, we need to see what emerges from the Boerne and Seminole Tribe decisions. Will the Court curtail other creations of civil rights by Congress that are beyond the terms of the 14th Amendment?

Second, we need to see what emerges from the Printz decision. For example, how are the so-far unsuccessful challenges to the motor voter law and other federal statutes going to proceed?

Third, will the Court find other instances where Congress has overstepped its authority under the Commerce Clause? Will the Court, for example, strike down any other federal criminal law that is really only a state concern?

Fourth, in the area of abortion, how will the Court apply the undue burden test of Casey to the laws that are working their way through the system right now, such as the state partial-birth abortion laws? Will the Court allow some democracy in this area?

Fifth, will the Court continue to modify the errors of its case law that created the so-called "wall of separation" between church and state and give a little more breathing room?

In sum, let us come back in a few years and see if it is time for the celebration to begin.

Mr. Jeffrey S. Sutton: The interesting question to me is what the various federalism cases from the last five years portend. Some say that the Court was merely reminding lawyers and the public that there are separation-of-powers lines out there and that the Court is going to respect them.

Others say that the decisions mark the beginning of a new era in the Court’s federalism jurisprudence. I cannot predict which set of prognosticators will be correct, but I can offer four suggestions that will improve the climate necessary for federalism to flourish.

First, the public has to understand that the charges of judicial activism that have been raised, particularly in the most recent term, are simply inaccurate. The charge goes like this: how is it that Justices who believe in judicial restraint are now striking down all these federal laws? The argument, however, rests on a false premise. In a federalism case, there is invariably a battle between the states and the federal government over a legislative prerogative. The result is a zero-sum game—in which one, or the other law-making power must fall.

The City of Boerne case proves the point. When Congress enacted RFRA, it presumably looked at the Constitution and asked itself, do we have power to do this under Section 5 of the 14th Amendment? They are entitled to deference when they make that call. States and cities, however, were engaged in precisely the same process when it came to a law like RFRA. The citizens of Boerne, Texas thought they, too, had lawmaking power in this area —specifically, to enact local zoning laws. And they also had a responsibility to obey the United States Constitution. Unlike Congress, they thought that it gave them permission to exercise their zoning authority.

There's nothing that suggests Congress is any better at figuring out what the Constitution means than the States. There is no presumption one way or another. State and local leaders are entitled to a presumption of constitutionality when they act, as is the federal government. Under the circumstances, a Court decision to strike RFRA is no less "activist" than a Court decision to strike a local lawmaking prerogative.

Second, the public needs to understand that federalism is ultimately a neutral principle. Federalism merely determines the allocation of power; it says nothing about what particular policies should be adopted by those who have power. Too often, however, states and localities sacrifice federalist principles in order to obtain near-term politically-favored results. The public debate occurs not on the grounds of structural guarantees of the Constitution, but on the grounds of the substantive legislation at issue—are you a supporter of religious liberties or are you not a supporter of religious liberties?

It strikes me that states and localities don't deserve any more victories at the Court if they can't develop a little more courage when it comes to litigating these structural issues. It is frustrating that, in pursuit of particular political goals, the states are not rising up together and defending their authority against encroachments by Congress.

Nor is defending these structural guarantees inconsistent with pursuing other substantive policy goals—they just must be pursued at a different level. In seeking to invalidate the federal RFRA, we stated that if RFRA is struck down, we will propose state legislation along the same lines the day the law is struck. And that's what we did. At the end of the day, we ought to have 51 different RFRAs.

Third, if federalism is going to continue to be relevant, and there is going to continue to be a movement in the direction of delegating more authority to the states, a lot of that is going to have to come from Congress. Even though many of our congressional leaders started out as State Attorneys General, as state legislators, or as state governors, many of them seem to forget the state role in our system. I would hate to think that the way federalism works in this country is that good government leaders are trained at the state level, only to then to move Washington in order to exercise as much power as is possible.

Fourth, it is important to convince those who believe in expansive individual rights that they too can benefit from a strengthened federalism. If there are going to be delegations of law making authority, there has to be delegations of authority when it comes to protecting individual rights. And states have got to construe their constitutions carefully, and independently of the United States Constitution.

The reason this is an important development for federalism is that it is the only way to convince the public that the structural guarantees will have a happy ending. If federalism is going to get anywhere, it has to be because people understand that it actually can work in the direction of individual rights and not just in the direction of governmental power.

There is one good example—it is in the area of school funding. There was a case in the early 1970s at the United States Supreme Court called San Antonio Ind. School Dist. v. Rodriguez. The issue in Rodriguez was whether impoverished schoolchildren had an equal protection right to the same or similar education to those in wealthier areas of Texas. The Court, by a 5-4 vote, held that this was not something the U.S. Constitution establishes as a baseline for the entire country.

Since Rodriguez, all of that litigation has shifted to the state level. And in Ohio, I litigated and just lost a case on this very score. While I am not happy about it, what is good about decisions like this is that even when you lose, the problem is still resolved at the local level. The Ohio Supreme Court is going to have to come back and revisit this issue. It is going to have to tinker with it in the context of what Ohio legislators can do, and that is something the people of Ohio have a little more control over than they would if these decisions were made in Washington, D.C. That strikes me as the real value of federalism and why we ought to find a way to continue to push it in the direction it is going.


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