By Alan Tauber

For the last 209 years, the Supreme Court waged an internal battle. The crux of this conflict has been the question of the appropriate role for the national government. At issue is a struggle between the supreme power of the national government and the reservation of power to the states under the Tenth Amendment. The Supreme Court has confronted this dichotomy between two aspects of the Constitution. In particular, it has focused on the limits of the Commerce Clause, and the Tenth Amendment’s protection of non-enumerated rights.

Currently, after a sustained period of expanded national power under the Commerce Clause, the Court has sought to limit the power of the Federal Government by defining interstate commerce. Additionally, by relying on the Tenth Amendment’s promise of reserved powers, in combination with the aforementioned reconstitution of the commerce clause, the Court has revived a system of government known as "dual federalism."

This concept was first employed by Chief Justice Roger Brooke Taney. That phrase implied that the system of government set up by the Constitution is a "system of separate but equal divisions of power between the states and the national government." In Charles River Bridge v. Warren Bridge, Taney made his view of federalism law, rejecting Chief Justice John Marshall’s view taken in McCulloch v. Maryland. Marshall set out the idea of implied powers, stating that Congress could take whatever steps were "necessary and proper" to achieve enumerated ends. He believed that the Tenth Amendment did not prohibit the use of implied powers because it lacked the word "expressly." Rather "[The Tenth Amendment] was adopted ex abundanti cautela; and that with it, nothing more was reserved, than would have been reserved without it."

While Marshall noted that the Tenth Amendment lacked the word "expressly," many future decisions would insert the phrase, thus rewording the Tenth Amendment, and altering the outcomes of several cases. The first such inclusion occurred in Lane County v. Oregon when Chief Justice Chase stated that "to [the States] and to the people all powers not expressly delegated to the national government are reserved." This has altered the course of Supreme Court jurisprudence with regards to the federalism debate.

The Court’s jurisprudence with respect to the Commerce Clause and the Tenth Amendment was transitory and variable until the 1937 Supreme Court term when the Court decided the landmark case of NLRB v. Jones & Laughlin Steel Corp. This ruling first allowed Congress to regulate significant portions of the economy under the Commerce Clause. NLRB marked the beginning of a nearly forty year period in which the Court refused to strike down any act of Congress based upon the Commerce Clause.

The most significant case decided in this forty-year period occurred shortly after NLRB in 1941. In United States v. Darby, Chief Justice Harlan F. Stone declared:

This declaration of the Tenth Amendment as nothing more than a truism altered the fundamental question put before the Court. It was no longer, "whether Congress had impinged on state sovereignty, but only whether Congressional action was within the scope of federal power."

As damaging as the statement of Justice Stone was to proponents of States’ rights, the Tenth Amendment was once again given life in National League of Cities v. Usery. The Court finally stated that Congress had overstepped its boundaries by requiring state and local governments to pay their employees the federal minimum wage. Justice Rehnquist, writing for a five justice majority stated that some aspects of state sovereignty "may not be impaired by Congress, not because Congress may lack an affirmative grant of legislative authority to reach the matter, but because the Constitution prohibits it from exercising the authority in that manner." This is the start of the diminishment of federal power by Rehnquist and his court. For all of the Court’s rhetoric that the federal government must only act in its proper sphere, the majority opinion failed to describe the states’ role, and further, it offered no reason why state interests need protection from the national government.

Six years later, the Court attempted to clarify its position on the Tenth Amendment in its decision in Hodel v. Virginia Surface Mining & Reclamation Association. Justice Thurgood Marshall created an elaborate "Tenth Amendment Test" that had to be overcome before the Court would overrule legislation based on a claim that the Congress had overstepped the grounds of the Commerce Clause and infringed upon the rights reserved to the States.

The test was three pronged, requiring that:

This three-pronged test only lasted for four terms, when once again, the Court switched directions in Garcia v. San Antonio Metropolitan Transit Authority. Justice Blackmun who sided with the dissenters in National League of Cities authored the opinion in Garcia. That seemed to end the Court’s role as the "umpire" of federalism permanently.

Blackmun attacked the Court’s "earlier effort to tie state protection from federal regulation to judicial identification of ‘traditional’ or ‘integral’ government functions" as "unsound in principle and unworkable in practice." Blackmun believed the standard set up in National League of Cities was too subjective and subject to changes in the Court’s composition. Furthermore, Blackmun argued that "National League of Cities erred in concluding that states need judicial protection from national encroachment." Instead, he wrote:

By insisting that the structure of the federal government is the proper way to defend states from national encroachment, Blackmun declared the age of judicially umpired federalism over. He insisted that the states could find proper recourse through non-judicial means.

This mandated stay on the sidelines of the federalism debate lasted a short six years. In 1991, Justice O’Connor and the majority delved into the spectrum of Tenth Amendment jurisprudence in Gregory v. Ashcroft. This case, dealing with the Age Discrimination in Employment Act, set up an unprecedented rule for future congressional action. Rather than reviving National League of Cities, the Court in Ashcroft ruled that when Congress sought to "upset the usual constitutional balance of federal and state powers" the intent to do so must be "’unmistakably clear in the language of the statute.’" Even more remarkably, the majority asserted that this reasoning was consistent with Garcia’s process-based approach:

The problem is that Ashcroft left unclear whether or not the decision was retroactive. Would other federal statutes written before the decision apply to the states? Indications are that they would not.

Shortly after Ashcroft, the Court heard arguments in New York v. United States. This case dealt with the question of whether or not the federal government could commandeer state officials to carry out federal statutes. Justice O’Connor, once again writing for the majority, created yet another rule that regulated what the national government could require of states. Congress was allowed to offer incentives to states that helped enforce federal legislation, but they could not out and out order the states to enact a federal regulatory program. Such compulsion, it was determined, violates the inherent sovereignty of a state. Justice O’Connor’s reasons for a no-commandeering rule are less than persuasive. "While she repeated that ‘a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny on either front,’ she never explained just how the no commandeering rule materially contributes to a healthy balance of power."

In 1995 the Court, for the first time in sixty years, struck down a statute based on Congress’ commerce power. United States v. Lopez questioned the constitutionality of the Gun-Free School Zones Act of 1990 which made it a crime to own a firearm within 1000 feet of a school. The majority believed that regulating weapons possession within a school zone did not affect interstate commerce and was solely within a state’s police power. Chief Justice Rehnquist wrote that "[t]o uphold the Government’s contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power retained by the States." Clearly the Court was not willing to grant Congress this power.

The Court’s most "emphatic acclamation" of state sovereignty since the New Deal was announced in Printz v. United States. This case dealt with the mandatory background checks required by the Brady Handgun Violence Prevention Act. Following the logic in New York v. United States, the Court ruled that the federal government could not require state law enforcement officers to administer the background checks. Justice Scalia, writing for the majority, argued that Article II of the Constitution vested enforcement in the Executive Branch, and Congress could not bypass that authority without amending the Constitution. Justice Scalia believed that the commandeering required by the Brady Bill would "’have an effect upon’ the separation of powers by allowing Congress to bypass the President and use the States to execute federal law." Justice Scalia also extended the observation in Ashcroft and New York v. United States that "federalism protects liberty by dividing power between the states and the national government." Thus Scalia and the Court voted, by a familiar 5-4 majority, to strike down those provisions of the Brady Bill.

More recently, the Court pulled the Eleventh Amendment into the federalism debate. In Seminole Tribe v. Florida the Court ruled that "in the ordinary exercise of its power to regulate interstate commerce, Congress lacked the authority to abrogate the immunity that states enjoy under the Eleventh Amendment from suits in Federal Court." In doing so, the Court overruled its previous precedent in Pennsylvania v. Union Gas Co. The Court stated definitively that "[e]ven when the Constitution vests in Congress complete lawmaking authority over a particular area, the [Eleventh] Amendment prevents Congressional authorization of suits by private parties against unconsenting states." This is just another example of the Court’s recent willingness to restrain Congress’ Commerce Clause power.

This term the Court has seen certiorari granted to five federalism cases, dealing with a variety of issues ranging from the rights of states to boycott businesses that trade with the government of Myanmar (Burma), to whether states are constitutionally immune from suits brought by private whistle-blowers under the federal False Claims Act. The Court has already heard oral arguments in three of the cases, and ruled on two.

In Kimil v. Florida Board of Regents the Court addressed the right of state employees to sue for age discrimination under the Age Discrimination in Employment Act. Siting state sovereignty, the Court, led by Justice O’Connor, ruled that state employees lacked such a right. Extending its rationale in Seminole Tribe the Court declared that the Eleventh Amendment provided immunity to States in federal court. Many states provide a state court remedy to victims of age discrimination, but this leads to a patchwork of protections, depending on the state in which one resides.

Another case decided by the Court this term offered a surprising result. In a significant departure from recent decisions, the Court ruled that a federal statute overcame a State’s inherent sovereignty. In Reno v. Condon the Court ruled that a federal statute could prohibit the commercial sale of drivers’ personal information by state motor pools. This hardly signals a shift back to the days of Garcia. Reno was decided prior to Kimil’s release and seems to be merely an aberration, rather than a signal that the winds of federalism were changing once again.
On the same day that the Court handed down Kimil the Court heard arguments in United States v. Morrison, in which the Court will decide whether or not Congress had the right to pass the 1994 Violence Against Women Act. The five Justice majority in Kimil was less than receptive to arguments by attorneys for the United States. Indications point to yet another decision in favor of the states.

In all, the Court’s federalism jurisprudence has traveled a long and winding road. Swinging back and forth between two poles of unrestricted Commerce Clause power and Tenth Amendment reserved powers, the debate appears far from over. In recent years, the Court has begun relying on the Eleventh Amendment to keep the federal government out of what the Court views as strictly state business. While the Court seems to focus on state sovereignty and rights when it comes to the proper balance of federal-state relations, it occasionally does uphold federal statutes that affect the states, provided those statutes are within the more narrowly defined conception of commerce.