Political safeguards

The intellectual origins of the first approach are generally attributed to law professor Herbert Wechsler's 1954 article, “The Political Safeguards of Federalism.” Since that time, others have developed and refined the approach, often to explain the Court's absence from the federalism arena from the late 1930s to the 1990s.¹¹

The political-safeguards approach argues that states' participation in the national political process amply protects state sovereignty, relieving any need for the Supreme Court to enforce federalism. States participate in the national political process in several ways. For example, the Constitution preserved the states as separate and independent sources of authority. Consequently, all federal legislation was to be understood against a background of previously existing state law. Even today, state and local governments continue to be the primary sources of law, dominating many areas of public policy, such as criminal, commercial, family, property, and zoning law, in addition to regulating public safety, traffic control, etc.

State sovereignty is also protected via state participation in the selection and composition of the national government itself. For example, presidential candidates must appeal to state electors to achieve office, as Florida's key role in the 2000 presidential election clearly illustrated. Also, members of Congress are elected by state-based constituencies that are organized and structured by state legislatures. Representation in the Senate, in particular, is apportioned equally among the states. The Seventeenth Amendment notwithstanding, this feature alone demonstrates “how far the composition of the Senate is intrinsically calculated to prevent intrusion from the center on the subjects that dominant state interests wished preserved for local control.”¹²

States are also political actors with enormous power and resources in Washington, D.C. Like other interest groups, they influence national policy. Today, a plethora of state and local organizations, such as the National Governors Association, the National League of Cities, and the National Association of Attorneys General, lobbies Congress, the executive branch, and the federal courts in regular, institutionalized ways. Moreover, these groups not only lobby the federal government to protect state and local interests, but, unlike ordinary interest groups, they are able to assert their own policy objectives, even in the absence of federal action.

Finally, law professor Larry Kramer argues that even if Wechsler was wrong to claim that the original constitutional structures provide adequate political protection for federalism, subsequent political developments have done so. In particular, Kramer points to the emergence of mass, state-based political parties, and to the development of a decentralized administrative state in which federal administration depends on state and local bureaucracies. Both features of modern American politics tend to integrate state and federal policy making and require that national policy makers be cognizant of, if not subservient to, state and local concerns.¹³

In this view, then, states are not helpless victims of a powerful national government. They have adequate resources to make policy in their own right and to shape the national political process. Additionally, from a normative standpoint, the political-safeguards approach conceptualizes federalism as a political rather than as a legal construct. The balance of power between the federal government and states should not be viewed as legally and precisely fixed. Rather, as social and economic problems in the United States change, political and policy-related processes must be flexible and adaptable. Thus, any judicial effort to freeze the boundary between state and federal power via legalistic doctrine will inevitably succumb to the fluid, self-enforcing principle of federalism, based in the give-and-take of the political process.¹⁴

Since courts are institutionally ill-equipped to police such political boundaries, they should use their limited institutional capital in areas where they can make a difference: protecting individual rights and championing those who have no recourse to the democratic political process.¹⁵

The political-safeguards approach to federalism guided the Court's jurisprudence during much of the twentieth century. Indeed, in Garcia v. San Antonio Metropolitan Transit Authority (1985), the Court explicitly accepted the approach, citing Wechsler's article. Writing for the majority, Justice Harry Blackmun cited evidence that states had been able to protect themselves just fine in the national political process and argued that judges have “no license to employ freestanding conceptions of state sovereignty.” Historically, such legalistic doctrines had proven “unsound in principle and unworkable in practice,” he wrote. State sovereignty is better “protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”¹⁶

The Rehnquist Court appears to have rejected the Garcia doctrine and the political-safeguards approach by reasserting a role for the Court in policing the boundaries of federalism. Critics argue that the Court's new jurisprudence will prove unworkable, and that it is an illegitimate intrusion into the domain of the elected branches of government. The Court has no legitimate role as a protector of state sovereignty; its decisions to strike federal policies are simply assertions of counter-democratic political power, and they should be rejected. Justice Stevens has suggested in his dissents that the Court's return to line-drawing is such “a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.”¹⁷

Judicial safeguards

In contrast to the political-safeguards approach, the “judicial safeguards” theory claims that it is essential for the judiciary to enforce the boundaries of federalism. This theory is predicated on the belief that the national government generally, and Congress specifically, cannot be expected to debate issues of federalism seriously or to limit their own power. Legal scholars who support this view argue that the Rehnquist Court's federalism decisions are a welcome, long overdue check on congressional and executive powers.¹⁸

This argument is based on an assumption similar to the one first adopted by John Marshall in Marbury v. Madison (1803): namely, the Court's role is to enforce constitutional limits on the elected branches of government. The Constitution creates a “compound democracy” in which the division of democratic authority generates common benefits either by protecting individual liberties or by providing multiple arenas for democratic participation. Since the Constitution imposes the limits of federalism on national power, it is implicitly the Court's role to enforce those limits.¹⁹

In this view, then, even the states' ability to protect themselves through the national political process would not by itself relieve the Court of its main constitutional duty.

In addition, proponents of this view argue that states are not always able to protect their interests. States are not powerful competitors in the federal system, but rather are seriously crippled in battles with Congress and need the Court's protection to guarantee their interests. This line of argument is complex, but the problem can be illustrated by example. Consider the argument that states are constituents of senators, and the Senate is therefore expected to act to defend state sovereignty against federal intrusion. While it is true that states collectively have an interest in preserving state sovereignty, individual states will occasionally prefer to trade some sovereignty for other benefits that Congress may bestow. The federal government, as a single entity, thus has a bargaining advantage over the states if it pursues a divide-and-conquer strategy. Twenty-six states' approval would be enough for the federal government to pass legislation that would intrude on state sovereignty. This collective-action problem for states has been exacerbated by the federal government's assumption of nearly unlimited taxing and spending authority since the 1930s. For example, consider speed limits and the legal drinking age. Congress offers states funds in exchange for voluntarily adopting federal standards. While states collectively have an interest in refusing this encroachment into areas once exclusively under their control, each state separately has an incentive to accept the offer, leaving others to bear the costs of protecting the principle of state sovereignty.²⁰

The only way out of this tragedy of the commons is for judicial review by the Supreme Court to invalidate federal statutes that intrude on state sovereignty, even if states agree to them. The protection of federalism under this approach runs in both directions: protecting states from federal intrusions and protecting the federal government from state aggression. In acting to preserve the federal balance, the Court fulfills its constitutional duty and provides a common good that individual political actors cannot otherwise protect. For nearly sixty years, however, the Court was silent on this matter; under virtually no judicial checks, Congress used that time to accumulate and centralize power. So to protect federalism adequately, the Court must weigh in. In this sense, the Rehnquist Court's decisions are countermajoritarian measures necessary to preserve the original design of the republic, lest the lines between federal and state authority wither away. Failure to act, Chief Justice Rehnquist recently argued, would be to conclude “that the Constitution's enumeration of powers does not presuppose something not enumerated, and that there will never be a distinction between what is truly national and what is truly local. This we are unwilling to do.”²¹

Presidential electoral politics and the Court

Platforms do not translate perfectly into policy after a party wins an election, but they do express both the general preferences of the parties and the issues that define national politics during presidential elections.³⁴

In addition, many short-term policy questions—such as abortion, racial inequality, and church-state relations—are lodged within broader issues of constitutional politics. Consequently, party platforms can serve as media for negotiating views about constitutional values. As such, they provide important indicators of how party elites view the importance of federalism as well as the role of courts. To determine the extent to which the major parties took positions on federalism and the role of courts, we conducted a simple content analysis of Democratic and Republican Party platforms between 1960 and 1996.³⁵

The number of references to federalism increased in both major parties' platforms. As a percentage of the total platform, federalism references in Democratic platforms varied over time; the Republicans consistently devoted five percent or more of their platforms to federalism after 1968. In 1996, almost six percent of the paragraphs in the Democratic platform addressed federalism, and more than eight percent of those in the Republican platform.

While the official platforms of the major parties consistently addressed federalism, the type of attention it received varied both by party and by the type of commitment the platform made. Platforms committed themselves to federalist principles either through commitments to cooperate in the implementation of policy, or through philosophical commitments to state sovereignty. The former are pledges to use federal power to assist states in addressing particular policy problems, but to allow state and local governments the flexibility to administer policy at their discretion. The latter favor reduced federal involvement, protect state sovereignty, or specifically call for federal deregulation and “devolution,” or downsizing, of power. Before 1980, most platform references to federalism represented cooperative policy commitments; commitments to state sovereignty became more frequent thereafter. Moreover, Republican platforms contained significantly more references to state sovereignty compared to their Democratic counterparts, especially after 1980.

For example, one of the few references to federalism in the 1960 Democratic platform emphasized the federal government's role in assisting states: “The Democratic Party believes that state and local governments are strengthened, not weakened by financial assistance from the Federal Government. We will extend such aid without impairing local administration through unnecessary Federal interference or red tape.” References to federalism within Democratic platforms during the 1960s favored a substantial role for the federal government, but also showed a growing commitment to leaving discretion over implementation to state and local governments. The language in Republican platforms during this time contained many similar cooperative policy commitments. However, Republican platforms during the 1960s and early 1970s also incorporated philosophical commitments to sovereignty. For example, the 1968 platform claimed: “An entrenched, burgeoning bureaucracy has increasingly usurped powers, unauthorized by Congress. Decentralization of power … [is] urgently needed to preserve personal liberty, improve efficiency, and provide a swifter response to human problems.”

In 1976, 1980, and 1984, the Democratic platforms referred repeatedly to federal-state relations. Nearly all these references were pledges of cooperation in specific policy areas. The Republican platforms also continued to refer to federal-state cooperation, but beginning in 1980, they increased their calls to limit the federal government and bolster state sovereignty. Importantly, by 1980, Republican platforms also began to include references to the federal judiciary, pledging to appoint judges whose philosophy was “consistent with the belief in the decentralization of the federal government and efforts to return decision-making power to state and local elected officials.”

After 1980, the proportion of philosophical state sovereignty to cooperative policy-implementation commitments in Republican platforms increased significantly, especially in contrast to Democratic platforms, making federalism a key cleavage issue in national electoral politics. The 1996 Democratic platform, for example, referred to federalism in 10 out of 159 total paragraphs (5.9 percent), but only two of those references concerned state sovereignty. For the most part, the Democratic platforms during this period continued to discuss federalism in terms of “partnerships” among different levels of government and the need to decentralize administrative bureaucracy. For instance, the 1996 Democratic platform stated: “We restructured federal education programs and eliminated federal regulations to give local schools, teachers, and principals the flexibility and help they need to meet those standards.” Importantly, Democratic platforms did not discuss judges and the role of courts in connection with federalist values.

The 1996 Republican platform referred to federalism in 36 out of 435 total paragraphs (8.3 percent). Twenty-two of the references supported state sovereignty or the devolution of power from the federal government to the states. The other fourteen references involved federal-state cooperation or encouraged the states to pursue specific policies on their own. Moreover, Republicans had clearly incorporated the courts and constitutional law into their strategy for reining in federal power and addressing the balance of power between state and federal government. The 1996 Republican platform, for example, specifically and repeatedly cited the Tenth Amendment and pledged to appoint judges who respected state sovereignty: “For more than half a century, that solemn compact has been scorned by liberal Democrats and the judicial activism of the judges they have appointed. We will restore the force of the Tenth Amendment and, in the process, renew the trust and respect which hold together a free society.”

Our review of party platforms indicates that the national parties have made federalism an important electoral issue for at least 40 years. During the 1960s and 1970s, both parties focused on new federal government programs and expenditures; federalism was generally viewed in terms of federal-state cooperation in policy implementation. By the 1980s, however, Republicans began to emphasize the need to restrict the reach of federal power, retrench federal fiscal responsibilities, and protect state sovereignty. Moreover, they clearly began to focus on the role of courts, judges, and constitutional law as a key to this effort. By the 1990s, having lost three presidential elections in a row, Democrats also took stronger positions on federalism, setting the stage for Bill Clinton, the only Democratic president elected since 1980, to unabashedly declare in 1996 that “the era of big government is over.” Nevertheless, while the Clinton presidency saw states as partners, it did not view states as competing sovereigns. More importantly, Democrats continued to view federalism as a political construct whose contours should be defined by the elected branches of government, whereas Republicans increasingly embraced a vision of federalism that required a strong judicial role.

Federal policy making

Attention to federalism and re-empowering state governments went beyond the rhetoric of party platforms; it affected federal policy making as well. The changing relationship between the federal government and state and local governments is a common theme in the scholarly literature on public policy.³⁶

Scholars have divided the years of renewed interest in federalism since the 1960s into three periods of federal policy formulation. First, President Richard Nixon outlined his “New Federalism” initiative in 1969. It encouraged an expanded role for the central government in addressing important policy problems, yet also allowed state and local governments greater flexibility in administering and implementing policies.³⁷ Sweeping new federal statutes like the 1968 Crime Control Act, the 1970 Occupational Safety and Health Act, the 1971 Clean Air Act, and the 1972 Clean Water Act set new national standards and continued to expand federal power into areas once left to state governments. Nearly all of these statutes, however, gave states increased responsibility for enforcing and administering the standards they established.³⁸ Indeed, the centerpiece of Nixon's New Federalism involved general revenue sharing and expanding block grants. These programs increased federal fiscal responsibilities while simultaneously giving the states greater administrative flexibility by placing fewer restrictions on how states spent federal funds.³⁹

A second period began with Ronald Reagan's election in 1980, which brought to Washington a new vision of federalism and states' rights, one he canonized in an executive order that established a series of “fundamental federalism principles.”⁴⁰

Like Nixon, Reagan called for block grants and greater devolution of the administrative state. However, his New Federalism also advocated significantly retrenching federal regulatory power and slashing federal fiscal responsibility and social programs. Reagan's policy initiatives were based in part on the notion that social policies are best implemented locally, and in part on an ideological belief that the scope of federal power should be limited.⁴¹ Reagan's New Federalism thus differed significantly from Nixon's.

While policy analysts debate the effectiveness and extent of the Reagan administration's federalism initiatives, they widely agreed by the mid-1990s that some form of devolution of federal fiscal and regulatory power had occurred.⁴²

Moreover, Democrats were forced to accept these trends.⁴³ The Clinton administration's “reinventing government” initiative, headed by Vice President Al Gore, included an explicit endorsement of the substantial role of state and local governments in the administration of public policy.⁴⁴ Nevertheless, Clinton's approach to federalism returned to an emphasis on the need for administrative flexibility, rather than Reagan-style retrenchment of federal power and responsibility. Indeed, Clinton sought to expand the role of the federal government in health care by proposing a system of national health insurance during his first year in office. Although that initiative failed, others succeeded. For example: the administration's National and Community Service Trust Act of 1993 established Clinton's AmeriCorps program; the 1994 crime bill provided massive new federal funding to increase the number of local police; and the administration's 1994 education bill, “Goals 2000,” increased federal education spending to assist local schools. In the end, however, President Clinton's quest for a more progressive federal government was restrained as a result of the massive federal deficit his administration inherited in 1993, along with the Republican capture of Congress in 1994.

There are various ways of measuring policy devolution. One body of research focuses on fiscal federalism, which measures patterns of spending at different levels of government;⁴⁵

the relative increase in federal spending compared with state and local government as a percentage of gross domestic product demonstrates the activism or velocity of each level. This type of evidence suggests that since 1980, state and local governments have been increasingly active relative to the federal government.⁴⁶ Other studies examine the flow of intergovernmental revenues from federal to state and local governments. They find that revenue sharing peaked in about 1979, slowly decreased until 1993, and thereafter slowly increased as a percentage of state and federal spending.⁴⁷ A third body of research focuses on the rise and decline of federal mandates on state governments.⁴⁸ While some policy areas have undergone significant devolution, the party that controls the federal government has tended to be reluctant to delegate responsibility to states on issues it particularly cares about.⁴⁹ Recent research on so-called unfunded mandates suggests that in the 1990s, the Republican Congress increased the number of federal mandates on state and local governments in many policy areas, while decreasing it in others.⁵⁰ In fact, Republican commitment to devolution seems to follow this pattern more generally; the party has supported devolution in policy areas such as welfare reform and economic regulations, but expanded the federal government's role in numerous other areas, such as tort reform and education. A final body of research examines how Congress grants states more leeway to make their policies in specific policy areas. For example, within environmental policy, the Clinton administration's National Environmental Performance Partnership System (NEPPS) allowed states more authority to set priorities and tailor implementation.⁵¹ The 1996 welfare reform bill did likewise.⁵²

So while the extent of devolution, along with its virtues, may be debated, by the mid-1990s scholars had identified several forms of policy devolution. In addition, they showed how the pattern and style of devolution had changed over time: Republicans seemed committed to retrenching federal regulatory power and fiscal responsibility in several areas, while Democratic initiatives still tended to embrace only the more modest goals of administrative decentralization.

Intergovernmental lobbying

Another example of how the national political process has responded to shifting concerns about federalism is the rise of interest groups that lobby the federal government on behalf of state and local governments. Since the 1960s, groups such as the National League of Cities (NLC), the National Association of Counties (NACo), the National Association of Attorneys General (NAAG), and the National Governors Association (NGA), among others, have become well organized and influential in Washington, D.C.

The seminal work on intergovernmental lobbying, and still one of the most extensive studies on the subject, is Donald Haider's When Governments Come to Washington, published in 1974. Haider defined three distinct periods of intergovernmental lobbying, tracking the policy developments and commitments to federalism reviewed in the previous two sections. The first period lasted from the New Deal through the mid-1960s and involved direct interaction between the federal government and local (mostly city) governments and groups. The mid-1960s brought a second period, during which cities and states competed for control of federal programs, and groups representing the collective interests of state and local governments became particularly well organized and influential in lobbying Congress. The third period began with the Nixon administration, after which government interest groups became substantially involved in a policy-making process that involved more state and local control over federal expenditures. While like private groups in most respects, Haider concluded that, unlike private groups, government interest groups have “officiality,” more “legitimacy in standing,” and greater “access to the federal government,” making them highly successful at influencing federal policy.⁵³

Expanding on Haider's research, Anne Marie Cammisa later identified a fourth period of intergovernmental lobbying that began in 1979 and continued into the 1990s. During this phase, federal grants to state and local governments decreased, forcing government lobbying groups to change tactics. These groups competed more over the scarce resources available, and they exploited the atmosphere of “deregulation” to lobby for fewer federal mandates and greater state autonomy. Cammisa concluded that government interest groups still wield substantial influence and are “important when Congress is developing or examining programs that will be implemented at the subnational level.”⁵⁴

Clearly, intergovernmental interest groups have developed an expanding capacity to influence the legislative and executive branches of the federal government and to form coalitions to protect their common interests.⁵⁵

Such groups have also begun to band together successfully to promote their interests in the federal courts. Studies show that since the 1980s, numerous groups representing state and local governments have emerged to lobby federal courts, and previously existing ones have become more proactive. Such groups include NAAG, the State and Local Legal Center representing the Academy of State and Local Government, and the Legal Advisory Committee of the National Institute of Municipal Law Officers.⁵⁶ Through their litigious activities, these groups go beyond simply defending constitutional principles of federalism; they also protect state and local policy initiatives against federal statutory preemption and create national-level policy of their own through joint law-enforcement policies and litigation initiatives such as the tobacco lawsuit and the Microsoft antitrust suit.

A recent study of amicus curiae, or “friend of the court,” briefs filed by states in the U.S. Supreme Court found a sharp increase between 1960 and the mid-1980s, jumping from just 8 such briefs (in four separate cases) in 1960 to, at its peak, more than 491 briefs filed (in forty-eight separate cases) during the 1986 term.⁵⁷

States intervened as amici in 9.3 percent of the Court's annual cases in the 1960s; by the first half of the 1990s, that percentage had increased to 34.4 percent. Not only have states become more frequent litigants before the Court (combined, they are second only to the federal government itself), but the success of their amicus briefs also increased steadily from the 1960s to the 1990s. As a result, the states now wield enormous influence over judicial policy making, with success levels that rival those of the Department of Justice.⁵⁸

The Court's jurisprudence

Even if the Court's revival of constitutional federalism has followed election returns in a general way, its individual decisions are countermajoritarian to the extent that they invalidate policies adopted by the elected branches. Yet the Court's decisions show little sign of challenging the core political values of the national governing regime. Although a thorough review of the Court's federalism decisions is beyond the scope of this article, a brief overview demonstrates the point. In stark contrast to the so-called Lochner Court, which invalidated key federal statutes at the heart of Roosevelt's New Deal, the Rehnquist Court's decisions have had relatively little impact on policy and unsettled few important political constituencies. Consider some of the most controversial decisions invalidating all or part of the Indian Gaming Regulatory Act, the Violence Against Women Act (VAWA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Religious Freedom Restoration Act (RFRA), the Brady Bill, and the Gun-Free School Zones Act (GFSZA). With the exception of the VAWA and the RFRA, these decisions have faced virtually no congressional criticism. We have heard no serious talk of curbing the Court's jurisdiction, amending the Constitution, enacting legislation in defiance of the Court, or refusing to comply with its decisions.⁵⁹

Recent research even suggests that members of Congress have attempted to draft legislation to satisfy—not challenge—the Court's federalist doctrines.⁶⁰ Why?

To begin with, the policies the Court invalidated cannot be characterized in strictly partisan terms. With the exception of the VAWA and the ADEA, each of these laws had been cosponsored by Democrats and Republicans. In addition, except for the VAWA, each of the bills passed through Congress without major dissent ⁶¹

And even if some of the legislation was more in line with Democratic constituencies—such as the VAWA, the ADA, and the Brady bill—other laws, such as the RFRA, were dear to important Republican constituencies. In other words, the federalism ox, though not quite an equal opportunity weapon, gored policies supported by Democrats and Republicans alike.

Second, in many of these cases, the federal policy that the Court struck down duplicated existing state law. For instance, most states already outlawed the possession of firearms at schools, and so the GFSZA was merely redundant. In addition, although the Brady Bill's background-check requirement for purchasing handguns was popular in and out of Congress, it was scheduled to “sunset” not long after the Court's decision, when a national “instant check” system would replace the background checks. Furthermore, according to proponents of handgun control, local law-enforcement officials continued to conduct background checks for their own political purposes after the Court struck down the Brady Bill.⁶²

As a result, scholars have noted that the statutes the Court struck down related to political issues; the national-level politicians involved may have cared more about claiming credit for taking a position than they did about successfully implementing the policy.⁶³

Finally, and perhaps most importantly, the Court's decisions have been narrow in scope and do not prevent Congress from enacting policy through other powers or mechanisms. Indeed, among all of the federal provisions it has invalidated, the Rehnquist Court has thus far avoided radical changes to legal doctrines, and only twice has it formally overturned existing precedents.⁶⁴

In general, the Court has launched its federalism offensive on two broad fronts: reviving the idea of state sovereignty under the Tenth and Eleventh Amendments; and limiting congressional regulatory power under the Interstate Commerce Clause and under Section Five of the Fourteenth Amendment. Of these two approaches, the latter is most reminiscent of pre-1937 activism. Yet consider the limited scope of the Court's new restrictions on federal power. The foundation of the modern federal regulatory state is Congress's power to regulate interstate commerce. During the Lochner era, the Court attempted to restrict such powers by propounding a series of doctrines that, for example, distinguished between interstate and intrastate commerce,⁶⁵ or between commerce and production.⁶⁶ In 1937, following Roosevelt's Court-packing attempt, the Court abandoned this jurisprudence in favor of one that nearly transformed the Interstate Commerce Clause into a grant of a general police power. The Court's post-1937 decisions recognized few if any limits on federal power.⁶⁷

After nearly sixty years of refusing to strike down a single regulatory exercise under the Interstate Commerce Clause, the Supreme Court reversed course under Chief Justice Rehnquist. In 1995, the Court struck down the GFSZA, and in 2000 it invalidated the VAWA. Yet the five-member majority applied—it did not overturn—the “substantial effects” test developed six decades earlier to uphold the constitutionality of New Deal legislation and subsequent federal statutes. According to that test, a federal statute is within Congress's commerce power if the activity being regulated has a “substantial effect” on interstate commerce. From the 1930s until the 1990s, the Court applied the test so broadly as to suggest that it would uphold almost any exercise of Congress's commerce power. The Rehnquist Court argues that its decisions simply follow this well-established doctrine, but articulate what some characterize as an additional component of Commerce Clause jurisprudence: the Court requires that in addition to having a substantial effect on interstate commerce, the activity in question must also be “economic” in nature. Hence, the Court found that the mere possession of guns on school grounds cannot have a substantial effect on interstate commerce, and that even if violence against women could be construed to have such an effect, it is not economic in nature. Thus, these decisions do not pose any serious threat to the great bulk of federal economic regulatory statutes passed since the New Deal. Indeed, the statutes struck down by the Rehnquist Court nearly all involve areas of criminal law or social policy into which Congress has only recently moved, rather than the economic regulations that the Court has long upheld.

What is perhaps most noteworthy about the Court's federalism decisions is what it has not done. Unlike the Lochner Court, the Rehnquist Court has not created an impenetrable roadblock to government regulatory activity. First, in marked contrast to the Lochner Court, whose Commerce Clause jurisprudence created a regulatory no-man's-land between state and federal powers by preventing either level of government from controlling the activity, the Rehnquist Court has left state regulatory power intact. Secondly, the Court has not closed off alternative sources of federal powers for accomplishing regulatory goals. For example, it has not restricted Congress's spending power, arguably the most important policy lever that Congress holds over states.⁶⁸

Nor has it abandoned or otherwise challenged the so-called preemption doctrine, under which valid acts of Congress (including under those passed pursuant to the commerce power) preempt state and local laws.⁶⁹ Without addressing these potent sources of congressional power, the Court's decisions are more like “speed bumps,” rather than roadblocks, to federal regulatory authority.⁷⁰ For this reason, many scholars acknowledge that thus far these decisions impose only minimal restraints on the national political regime. If there has been any constitutional revolution, it was what Keith Whittington calls a “velvet revolution.” The Rehnquist Court, he notes, “is not the Lochner Court. Politically, the [Rehnquist] Court is swimming with the political current rather than against it, and the Court has given no indication of wanting to challenge central commitments of dominant political actors.”⁷¹ Even the Court's staunchest critics admit that its decisions thus far are only minor constraints on the national political regime. One prominent constitutional law scholar calls the Court's new jurisprudence simply a “chastened” version of the New Deal constitution,⁷² while one of the fiercest critics of the Court's federalism decisions concedes, “the sky is not falling, not yet at least. A revolution may be in the offing, but it is still early.”⁷³

Regime politics: Reasons for controversy

If the Court's federalism decisions have generally “followed the election returns,” and have avoided upsetting core constituencies, why then are the decisions so controversial? Perhaps the academic controversy lies in the growing politicization and polarization of the academy itself. It has been argued, especially in the wake of Bush v. Gore (2000), that the legal academy in particular has become increasingly partisan and incapable of evenhandedly analyzing the role of the Court.⁷⁴

Thus, the controversy is reduced to the idiosyncrasies and neuroses of legal academics—a tempest in a teapot, if you will. Such an explanation, however, seriously underestimates the degree to which debate about the Court's federalism decisions and the divisions within the legal academy itself are tied to more fundamental political causes. We argue that the source of controversy and division, as our discussion above suggested, lies in the divided nature of the current national political regime.

A large body of literature in both political science and law now discusses regime theory. In political science, this literature focuses on critical elections and their role in producing a dominant party coalition whose values inform ordinary politics for a generation or more.⁷⁵

In law, the literature tends to focus on “constitutional moments” or “constitutional orders,” in which acceptance or entrenchment of a new constitutional vision results in political realignment.⁷⁶ In this view, the Republican Party's ascent after the election of 1860 and the reforms and constitutional amendments that followed the Civil War marked an important critical election and constitutional moment in American political history. Similarly, scholars usually interpret Franklin Roosevelt's election in 1932 and the subsequent New Deal reforms (along with the Court's capitulation in 1937) as another critical election and constitutional moment. In general, the two literatures complement each other, but within each there is controversy about how to determine when a critical election or constitutional moment has occurred. In particular, scholars debate whether the institutional arrangements in effect since the 1960s are stable enough to be considered a new political regime, or a new constitutional order, that is separate and distinct from the New Deal political regime.⁷⁷ Without taking a position in this debate, we simply note that in contrast to earlier periods of American history and previous constitutional regimes, the post-1960s American political system has been characterized by electoral dealignment, divided government, and a rise in partisan polarization.⁷⁸ Indeed, divided government has become the norm during this period; between 1968 and 2002, the same party controlled both the White House and both houses of Congress during only seven years.

The consequences of this political system for the role of the Court and judicial review are at least threefold. First, during extended periods of divided government, a stronger form of judicial review becomes possible. Without a stable coalition controlling the elected branches, both parties have an incentive to turn to the courts to resolve political issues, while judges are less afraid of institutional retaliation if they make unpopular decisions. Unlike under unified government, presidents and legislators are unwilling or unable to coordinate an assault on judicial independence, and each party will fiercely defend the judiciary from encroachments by the other party.⁷⁹

Second, “regime” values will be less stable and more conflicted, since neither party enjoys consistent control over legislative institutions. It is true that even when a single party dominates the electoral system, regime values may conflict, as for instance in the conflict between blue-collar labor interests and the civil rights movement within the Democratic coalition of the 1960s. But such conflicts are more prevalent when the regime lacks a unifying party structure to harmonize those competing interests. Even modest alterations to existing legal doctrines may induce dire warnings from politicians as the parties become ideologically more polarized and face a growing incentive to exaggerate the importance of change in an effort to lure independent voters. Third, the electorate is unlikely to mobilize against the Court's positions. To some extent, the polarization within the elected branches reflects polarization within the electorate itself. Indeed, the 2000 election saw the highest level of straight party voting in fifty years of National Elections Studies surveys, and, according to public opinion polls, marked the high point of a thirty-year trend of partisan and ideological polarization.⁸⁰ During such periods of division, the Court's decisions will always enjoy support from a significant portion of the public.

The Rehnquist Court's federalism decisions demonstrate all the above factors at work. The Court's foray into federalism was neither preordained nor inevitable. Scholars have identified several factors leading to the revival of federalism in post-1960s American politics, including declining levels of trust in national political institutions and state-level reforms that restored them as vital centers of democratic activity.⁸¹

Additionally, a shifting intellectual environment increasingly discounted synoptic, centralized forms of policy making in favor of decentralized and market-based ones. Finally, the emergence of influential, mostly conservative, think tanks and interest groups provided political mobilization for a federalist agenda.⁸² These and other reasons might explain the revival of federalism within the elected branches that we described in the previous section. But none of these factors required federalism to migrate to the Court. Simply put, federalism was in the process of rehabilitation long before, and without any help from, the Rehnquist Court. Thus conflict and controversy have not come simply from the revival of federalism itself, but rather from the Court's role, specifically its embrace of the judicial-safeguards approach.

As we showed above, the elected branches of government were reasserting federalist principles as early as the 1960s. The Democrats committed to federalism through cooperative policy implementation and decentralized administrative decision making. This kind of federalism fits comfortably with the political-safeguards model, because it enables the federal government to promote national policies but also to take advantage of more flexible and potentially more efficient local administration. The Republicans likewise began with a commitment to cooperative implementation, but then, beginning with Reagan's election in 1980, shifted to a philosophical state sovereignty commitment. Significantly, from then on Republicans began to focus on the relationship between federal judges and federal power.

Since 1980, scholars have well documented the influence of conservative groups such as the Heritage Foundation, the American Enterprise Institute, and the Federalist Society on Republican administrations and their views on courts and federalism.⁸³

Perhaps most important of these was the Federalist Society, which was founded in 1983 with the explicit goal of drawing attention to the Constitution's text and restoring “limited government” and federalist values. The group now claims to have influenced the views of lawyers and judges on constitutional federalism issues;⁸⁴ many Reagan-Bush judges (as well as their law clerks) were affiliated with the Federalist Society.⁸⁵

The Reagan Department of Justice (DOJ) in particular was filled with attorneys who had Federalist Society ties.⁸⁶

Under Attorney General Edwin Meese, the Department consciously used judicial appointments and government litigation strategies to bring federalist issues to the judiciary. Consider a 1988 report to the Attorney General by the DOJ's Office of Legal Policy that outlined changes the administration wanted to see in constitutional law and interpretation. A lengthy section entitled “Will the Tenth Amendment play a significant role in protecting states from federal control?” concluded:

Thus, the Republicans explicitly linked their stronger philosophical version of federalism with a judicial agenda, advocating the judicial-safeguards approach. They justified this position by insisting that the judiciary was a necessary check on Congress's inability to control itself. Strategically, the position made sense to Reagan administration officials when, in the 1980s, it seemed unlikely that Republicans would ever regain control of both houses of Congress.

Although conservatives and the Republican Party espoused the judicial-safeguards approach throughout the 1980s, the Court's new federalist jurisprudence began in earnest in 1992⁸⁸

when, in New York v. United States, it struck down a federal statute that governed how states treat hazardous waste.⁸⁹ The date of the decision itself is an important indicator of why and how the Court's jurisprudence changed. Clearly, the advocacy work of conservative think tanks and the DOJ had rehabilitated the judicial-safeguards approach, which had been abandoned and made unrespectable after 1937, and made it more attractive to lawyers and judges. Moreover, the Republican capture of Congress in 1994 possibly decreased judicial fears of congressional reprisals against a stronger judiciary.

Most likely, however, the shift in the Court's decision making was primarily the consequence of Court appointments by Republican presidents, not of sitting justices converting to a new position. In particular, the current Court is the legacy of Reagan and his administration's commitment to philosophical state sovereignty. Although New York was decided by a 6-3 vote, most of the Court's subsequent decisions have been 5-4 decisions. The majority block—O'Connor, Rehnquist, Kennedy, Scalia, Thomas—was first in place in 1992, all appointed (or promoted, in Rehnquist's case) by President Reagan or Bush. In contrast, of the four most frequent dissenters, three—Stevens, Breyer, Ginsburg—were appointed either by Democrat Bill Clinton, or by Republican Gerald Ford prior to 1980. Only Justice Souter was a post-1980 Republican appointee. Hence, it is not a coincidence that the Court's federalism decisions since 1992 closely reflect the views of Republican presidential candidates since 1980. This also explains why liberals and Democrats have responded so bitterly to the Court's turn in jurisprudence even when they show little interest in the actual policy impact of its decisions, while conservatives and Republicans have been supportive even when the Court invalidates particular policies they support.⁹⁰