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Federations Magazine Article
Publication Year:
U.S. Supreme Court shifts to centre in recent constitutional rulings

Settling disputes between
the federal government and the
states has been and will continue
to be a key role of the
United States Supreme Court.
“The question respecting the extent of
the powers actually granted [to the federal
government], is perpetually arising,
and will probably continue to arise, as
long as our system shall exist.” So wrote
Chief Justice John Marshall of the United
States Supreme Court in McCulloch v.
Maryland (1819), and his statement has
proven prophetic. Many Supreme Court
cases have focused on the distribution of
power between the federal and state governments.
In some the Supreme Court
has upheld the federal government’s
claims, while in others it has safeguarded
the powers of the states.
The nine justices of the U.S. Supreme
Court play a crucial role in American federalism.
They police the boundary
between the federal government’s powers
and those of the states, striking down
as unconstitutional those federal laws
that invade state powers and those state
laws that infringe upon federal rights.
Aside from their appointment by the
president with the “advice and consent”
of the Senate, the justices remain free
from interference by the legislative and
executive branches, and this independence
enables them to serve as a neutral
umpire in resolving federalism disputes.
The U.S. Supreme Court has over time
offered varying answers to the question
of how the Constitution divides power
U.S. Supreme Court shifts to centre
in recent constitutional rulings
There has been no federalism revolution in the courts, nor is there likely to be
G. Alan Tarr is Distinguished Professor of Political Science and Director of the Center for State
Constitutional Studies at Rutgers University-Camden. He is the co-author of American
Constitutional Law (7th ed., 2007), co-editor of Constitutional Origins, Structure, and Change
in Federal Countries (2005) and co-editor of Federalism, Subnational Constitutions, and
Minority Rights (2004).
© istockp hoto .com /Lisa McDonald
united states
OCTOBER | NOVEMBER 2007 Federations
No drugs and no guns, says a sign in English and Spanish outside an elementary school in Arlington, Texas. The U.S. Supreme Court struck
down a federal statute creating gun-free zones near schools. State and local legislation is still legal.
between the federal and state governments.
After 1937, a shift toward the
federal government occurred, continuing,
though somewhat diminished, until
the early 1990s. Another shift appeared
imminent in the mid-1990s. A crucial
source of federal power is the Commerce
Clause of the U.S. Constitution, which
authorizes Congress to regulate trade
with foreign nations, with the Indian
(Native American) tribes, and among the
states. Congress has relied on this clause
as authority for many laws that it has
enacted, regulating both commercial
and non-commercial activity. From 1937–
1994, the Supreme Court consistently
rejected claims that Congress had
exceeded i t s power s under the
Commerce Clause. But in United States v.
Lopez (1995) and United States v.
Morrison (2000), a five-member majority
struck down federal statutes as beyond
congres s ional power under the
Commerce Clause.
When states fail to protect
individual rights
Another major source of congressional
power is the Fourteenth Amendment,
adopted in 1867 after the Civil War. This
amendment gave Congress the power to
legislate when states fail to protect individual
rights. During the twentieth
century, the Court largely upheld federal
laws enacted under the Fourteenth
Amendment. But in City of Boerne v.
Flores (1997) and subsequent cases, the
justices invalidated federal statutes as
beyond Congress’s power under the
Fourteenth Amendment. In two cases
during the 1990s, they also struck down
congressional statutes that “commandeered”
state officials into implementing
federal programs. And in Seminole Tribe
of Florida v. Florida (1996) and subsequent
cases, the justices invalidated
several federal laws that allowed states to
be sued without their consent.
Some hailed the Court’s aggressive
policing of constitutional boundaries as
a “federalism revolution.” But members
of Congress saw in the Court’s rulings a
lack of respect for Congress. Thus, when
Congress was holding hearings in 2005
to confirm John Roberts as the new Chief
Justice, Senator Arlen Specter of
Pennsylvania blasted the Court’s rulings
as a “usurpation” of congressional
authority. Whatever the assessment,
there was overwhelming agreement that
the Supreme Court’s decisions signalled
a major shift, fulfilling former Chief
Justice Rehnquist’s pledge to respect the
principle that “the Constitution creates a
Federal Government of enumerated
powers.” In other words, the Constitution
grants only limited powers to Congress.
With the benefit of hindsight, however,
it is clear that both the hopes and the
fears were exaggerated. There has been
no federalism revolution, nor is there
likely to be. Let us examine what actually
occurred and why.
Invoking the “Commerce Clause”
In the 1995 case of United States v. Lopez,
the Supreme Court struck down a federal
statute creating gun-free zones near
schools. Five years later, the Court invalidated
a provision of the federal Violence
Against Women Act that established a
right to sue perpetrators of gender-based
violence in federal court. These decisions
might have signalled a fundamental shift
on the Court. But in neither case was
Congress directly regulating economic
activity, so the rulings might merely have
meant that federal laws regulating noncommercial
activity in areas of traditional
state concern would have a difficult time
in the Supreme Court.
This narrower reading was confirmed
by the Supreme Court in 2005 in
Gonzales v. Raich. In this case, a federal
law conflicted with a California program
that authorized doctors to prescribe marijuana
for medical purposes and
permitted patients to grow or purchase
marijuana for those purposes. The Court
upheld the applicability of the federal
law, noting that Congress was directly
regulating economic activity, since there
was a thriving (albeit illegal) market for
marijuana, and that Congress could regulate
even intrastate non-commercial
activity in order to achieve its regulatory
Interpreting the Fourteenth
The Fourteenth Amendment protects
individual rights against infringement by
state governments and authorizes
Congress to enforce the amendment. In
1990 the Supreme Court ruled that state
governments did not have to exempt persons
from obeying laws that conflicted
with their religious beliefs, as long as the
laws were applied even-handedly to
everyone. Congress sought to reverse
this ruling. Relying on the Fourteenth
Amendment, it enacted a law that
required states to demonstrate a “compelling
state interest” before requiring
persons to act in violation of their religious
beliefs. But in City of Boerne v.
[please turn to page 31]
Four Supreme Court justices flank President George W. Bush at his state of the union
address in January. From left: John Roberts, Anthony Kennedy, Stephen Breyer and
Samuel Alito.
OCTOBER | NOVEMBER 2007 Federations
OCTOBER | NOVEMBER 2007 Federations
united states [from page 27]
Flores (1997), the Court declared this law
unconstitutional. According to the Court,
Congress’s powers under the Fourteenth
Amendment did not extend to the “intrusion
at every level of government,
displacing laws and prohibiting official
actions of almost every description and
regardless of subject matter.” It was the
Court’s responsibility to determine
whether Congress had overstepped its
bounds. This seemed to promise a continuing
judicial scrutiny of congressional
legislation affecting the states. However,
the Court has since retreated from a confrontation
with Congress, and its rulings
show considerable deference to congressional
Accused of commandeering
In other cases, the Supreme Court ruled
against the federal government when it
dictated specific behaviours to state
For example, the court found that part
of a law dealing with radioactive waste
was unconstitutional. The provision
required a state that had failed to provide
for the disposal of low-level radioactive
waste to take possession of the waste and
become liable for damages associated
with it. Justice Sandra Day O’Connor
held that the Constitution simply does
not give Congress the authority to require
the states to regulate.
“Where a federal interest is sufficiently
strong to cause Congress to legislate, it
must do so directly; it may not conscript
state governments as its agents,” she held.
The court followed with a ruling striking
down provisions of a handgun law
that commanded state and local lawenforcement
officers to conduct
background checks on prospective handgun
purchasers. The justices held that
conscripting state officers to carry out a
federal program violated the states’
But despite the publicity generated by
these rulings, they had little impact on
American federalism. For one thing,
Congress has only rarely relied on commandeering
state officials to achieve its
ends. For another, as the court noted in
New York v. United States, Congress could
still regulate directly and to pre-empt
contrary state regulations. Or Congress
could establish grant programs that
would induce states to adopt the policies
it favored as a condition for receiving federal
States invoke immunity against
The Supreme Court has given a mixed
message when it comes to whether
Congress can enact laws allowing state
governments to be sued without their
consent. The Court struck down seven
federal statutes in the 1990s in which
Congress had authorized persons to sue
the states. In one case, then Chief Justice
Rehnquist wrote that “each State is a sovereign
entity in our federal system” and
that “it is inherent in the nature of sovereignty
not to be amenable to suit without
its consent.”
However, the justices have since ruled
that Nevada employees could sue their
employers in federal court for violation
of the Family and Medical Leave Act.
And in subsequent rulings the Court has
continued its deference to Congress,
upholding a federal law that guarantees
that disabled persons can sue states in
federal court. And in a Virginia case the
justices ruled that the Bankruptcy Clause
of the Constitution gives Congress the
authority to take away the immunity that
usually protects states from private suits.
Judges divided
The Supreme Court’s federalism initiatives
in the 1990s have proved less
revolutionary than most commentators
had predicted. In part, this may reflect
the divisions among the justices. Many
of the Court’s federalism rulings have
been 5-to-4 decisions, and efforts to pursue
a more fundamental break with
existing judicial doctrine might have
splintered the Court majority. In part,
however, it may reflect a lack of judicial
commitment to federalism itself. Some
commentators have suggested that the
Court’s rulings reveal less a principled
attachment to federalism than a desire to
enhance judicial power at the expense of
Congress. Certain decisions support
such an interpretation. Whatever the
case, the recent replacement of two
strong advocates of federalism – Chief
Justice Rehnquist and Justice O’Connor –
suggests that the final word on the
question respecting the extent of the
powers actually granted to the federal
government has yet to be written.
german y [from page 29]
a l l bor rowing . Anothe r i s the
introduction of an “early warning system”
to avoid unhappy budgetary surprises.
But such moves would only help to prevent
future indebtedness. Legislators still
need to deal with the current debt of the
Länder and the federation. Günther
Oettinger, co-chair of the commission,
proposed the introduction of a special
solidarity fund to assist the Länder in
reducing the debt. Some Länder argue
there first must be agreement about how
to avoid accumulating even more debt in
the future before considering how to deal
with the accumulated debt.
However, the Länder – especially the
poorer ones in the east – obviously will
face a huge challenge if a debt brake is
introduced. Currently, they have had
only two ways of balancing their budgets:
cutting expenditures, or borrowing more
money, thereby increasing their total
debt. But cutting expenditures is not a
viable option because most expenditures
are prescribed by federal law. And if a
debt brake is introduced, they will not be
able to borrow money any more.
It seems like a no-win situation, but
Hans-Peter Schneider, executive director
of the Institute of Federalism in Hannover,
argues that the East German Länder
might be interested in receiving more fiscal
responsibility because they know that
this will be their salvation. “The Länder
need greater fiscal autonomy,” Schneider
said. “First, they should have the competency
to legislate on those taxes which
are attributed to them. Second, they
should be empowered to (place a) surcharge
on shared revenues to finance
specific tasks for a restricted period of
time. Finally, they should be able to deal
more flexibly in administering federal
laws and to deviate from federal standards,
which often are very costly for the
Länder.” In general, he argued that
Germany’s form of federalism needs to
be shifted more from an administrative
one to a creative, constructive model.
Federalism Reform II will not be completed
until 2008 at the earliest. The
grand coalition needs to be able to compromise
with the Länder to reach
agreement on legislation and get it
passed in Berlin. When it is, it will represent
more than a major step in the
development of German federalism.