On Wednesday morning I led a session on "Federalism and the Roberts Court," in which we considered the likely trajectory of the Court's federalism jurisprudence. Efforts to reinvigorate the judicial safeguards of federalism were a hallmark of the Rehnquist Court's jurisprudence. A slim majority of the Court sought to advance this cause in two areas: Enumerated Powers (commerce clause, Section 5 of the 14th Amendment) and State Sovereignty (sovereign immunity and commandeering). Further, these cases tended to split along traditional ideological lines.
These issues -- enumerated powers and state sovereignty -- have been largely absent from the jurisprudence of the Roberts Court thus far. While such traditional federalism concerns were quite evident in some prominent cases (e.g. Gonzales v. Oregon, Rapanos), such concerns merely served to narrow the Court's statutory interpretations, and the justices largely avoided any consideration of the underlying constitutional questions.
This far, the action has shifted to questions of preemption and the dormant commerce clause. The latter area, in particular, seems ripe for change as the Court's recent decisions in this area (e.g. United Haulers, Ky. Dept. of Revenue v. Davis) suggest the Court may be ready to simplify or even scale back its enforcement of commerce clause limits on state regulatory authority. Also interesting is that the Roberts Court's cases in these areas have not broken down along traditional ideological lines. Consider, for instance, the divisions in Watters v. Wachovia Bank, a preemption case in which Roberts and Alito split, and Kennedy's dissenting votes in the dormant commerce cases. In short, the early returns suggest that federalism in the Roberts Court could be quite different than federalism in the Rehnquist Court.
Will this pattern continue, or will the Court return to the federalism battlegrounds of the Rehnquist years. Given the small size of the Court's docket, it may not mean much that it has yet to hear a significant enumerated powers or state sovereignty case. Such cases could still be waiting in the wings and a more traditional ideological split in preemption or dormant commerce clause cases could yet emerge.
Federalism was also the theme of two papers presented this morning. One presented by Bradley Joondeph (Santa Clara), "Federalism, the Rehnquist Court, and the Modern Republican Party," suggested that the bottom-line consequence of the Rehnquist Court's approach to federalism has been more a limitation on the regulation of private economic activity than a meaningful enhancement of state autonomy. This occurred because while the five right-leaning justices on the Rehnquist Court were relatively united in cases constraining Congressional authority to constrain state autonomy, the justices divided in cases considering federal constraints on state authority, such as dormant commerce clause and preemption cases. As a consequence, he suggested, the Rehnquist Court's federalism jurisprudence appears to be more in line with the political agenda of the modern Republican Party than on a principled commitment to state autonomy. Whether this trend continues in the Roberts Court, Joondeph concludes in his paper, may depend upon the extent to which the Chief Justice and Justice Alito are more supportive of state autonomy in dormant commerce and preemption cases.
While Joondeph suggests a "regime politics" explanation for this pattern, he did not endorse claims that this tension in the Rehnquist Court's federalism jurisprudence does not necessarily demonstrate any real hypocrisy. After all, federalism is not necessarily about "state sovereignty" or "state autonomy," all the flowery language about state "dignity" and the like in various Justice O'Connor and Kennedy opinions notwithstanding. Rather, many conceive federalism as about the allocation of power between the state and federal governments and, in the preemption context, the consequences of constitutional exercises of federal power on residual state autonomy. Thus, if the judiciary should be active in policing the boundaries of federalism, it would make sense that justices who support limits on federal power might also support many limitations on state autonomy.
In a paper titled "The Populist Safeguards of Federalism," Robert Mikos (UCDavis) questioned academic claims that there is a popular preference or call for the "federalization" of various policies, and that there are many reasons why citizens might actually prefer state and local regulation of particular problems. As a consequence, Mikos argued, Congress may not be particularly prone to intrude upon state autonomy as some academics presume. Indeed, in his written paper, he concludes "Under most circumstances, the populist safeguards shield state power from federal encroachments, thereby tempering the need for judicial review."
I did not find Mikos' presentation to be particularly convincing as it does not seem to account for the demonstrable increase in the size and scope of the federal government. Even if the populist demand for federalization is less than is often presumed, and there is more widespread support for state and local authority than some expect (points I am willing to accept), massive federalization has occurred in many areas traditionally left to state and local governments, and often without any efficiency or interstate externality-control justification. Thus, unless one accepts that such expansion of the federal government is desirable, and does not constitute "encroachment" on state and local governments, it seems that his ultimate conclusion is simply unsupportable.
While Mikos opted to focus on the popular affinity for state and local control, popular preferences are often not determinative as to whether the federal government intervenes in a given area. Concentrated interests, both economic and ideological, often exert greater influence on policymaking and seek federalization to establish a uniform federal policy on a matter of concern. Political officials and elites can also benefit from federalization, both to enhance their own power or diminish political accountability.