The Roman god Janus had two faces, looking in opposite directions. This split
appearance is an apt metaphor for the Rehnquist Court's decisions involving
federal-state relations. One face, which has received much attention over
the past decade and a half, is characterized by the Court's post-1990
decisions concerning state sovereignty, sovereign immunity, and the reach of
Congress's powers under the Interstate Commerce Clause and the
14th Amendment. All have had a devolutionary thrust,
bolstering state authority or insulating state institutions against federal
law and regulations. The second, less recognized face is distinguished by
the Court's emerging doctrines concerning federal preemption of state and
local authority. In these cases, the Supreme Court—often led by members of
the new federalist majority—has tilted surprisingly in favor of federal
authority. This article examines both faces of contemporary judicial policy
making on matters of federalism, with a particular focus on the implications
for federal preemption.
The Face of Dual Federalism
In 1991, the Rehnquist Court began issuing a series of decisions that
have breathed new life into the old concept of judicially enforced dual
federalism (Corwin, 1950). These cases have
touched on issues as diverse as nuclear waste disposal, gun control,
religious freedom, and Indian gambling casinos, but all have developed
along two general themes. The first theme involves efforts to define a
sphere of state sovereignty that is relatively protected from federal
regulation and intrusion. The second involves efforts to limit the scope
of Congress's powers under Article 1, section 8 and the 14th
Amendment. Collectively, they have been likened to an “antifederalist
revival” on the Supreme Court (Gunther and Sullivan
1997).
Resurrecting State Sovereignty
In one series of cases, the Rehnquist Court has attempted to carve
out a sphere of state institutional autonomy that lies beyond the
reach of congressional authority. Thus, the federal government may
neither dictate the retirement age of state judges (Gregory v. Ashcroft (1991)) nor
“commandeer” the administrative apparatus of state regulatory
authority (United States v. New York
(1992)). As the Court majority declared in the 1996 case
of Printz v. United States
(1997):
The Federal Government may neither issue directives requiring
the States to address particular problems, nor command the
States' officers, or those of their political subdivisions,
to administer or enforce a federal regulatory program…. such
commands are fundamentally incompatible with our
constitutional system of dual sovereignty. (935)
State Sovereign Immunity
The enforcement of many federal laws relies in whole or in part on
congressionally authorized citizen lawsuits. The Rehnquist Court,
however, has restricted Congress's authority to subject states to
private rights of action under federal law. In Seminole Tribe of
Florida v. Florida (1996), the
Supreme Court voided provisions of the Indian Gaming Regulatory
Act of 1988 that authorized tribes to sue states in federal
court if they failed to negotiate the regulation of gambling in good
faith. A majority of the Court held that: “Even 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” (72, 76).
The Seminole Tribe decision has been reinforced by a series
of subsequent decisions.1
See for
example Alden et al. v. Maine, 527 U.S. 705 (1999); Florida Prepaid
Postsecondary Education Expense Board v. College Savings
Bank, 527 U.S. 627 (1999); and College Savings Bank v. Florida
Prepaid Postsecondary Education Expense Board, 527
U.S. 666 (1999).
For
example,
Alden v. Maine extended states' immunity to
congressionally authorized private suits
in state courts.
This issue was not addressed in the language of the 11
th
Amendment,
2 The Amendment reads:
“The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by citizens
of another state, or by citizens or subjects of any foreign
state.”
but Justice Anthony Kennedy wrote for the
majority that: “The Constitution's structure and history … make
clear that States' immunity from suit is a fundamental aspect of the
sovereignty they enjoyed before the Constitution's ratification and
still retain today” (
1999, 713).
Limitations on Delegated Powers
Another important development in recent federalism jurisprudence
involves limitations on the scope of Congress's delegated powers. A
prominent example was the 1995 decision United States v. Lopez (1995), which
involved a challenge to the Gun-Free School Zone Act of
1990. A narrow majority of the Supreme Court held that “the
Act exceeds the authority of Congress ‘to regulate Commerce … among
the several States’” (United States, 551). As was widely noted at
the time, this decision marked the first occasion since the New Deal
when the Court had invalidated a congressional statute for exceeding
the scope of the commerce power.
The reasoning in Lopez was strengthened and reaffirmed by
the Court's May 2000 decision in United
States v. Morrison, et al. which dealt with a
portion of the 1994 Violence Against Women Act. After
applying the test laid out in Lopez for determining the
scope of interstate commerce, Chief Justice Rehnquist wrote for the
majority that:
The Constitution requires a distinction between what is truly
national and what is truly local…. The regulation and
punishment of intrastate violence that is not directed at
the instrumentalities, channels, or goods involved in
interstate commerce has always been the province of the
States. (617–618)
Limiting Congress's Enforcement Powers Under the
14th Amendment
A fourth line of cases with important federalism implications
involves Court-imposed limits on Congress's authority to interpret
and enforce the 14th Amendment. This issue was posed most
directly in the 1997 case of City of Boerne
v. Flores, but it subsequently has become
intertwined with other strands of the Court's federalism
jurisprudence as Congress has attempted, largely unsuccessfully, to
use its enforcement powers under section 5 of the 14th
Amendment to circumvent the Court's Interstate Commerce and
11th Amendment holdings.
There is much debate over the significance, scope, and durability of
these new federalism decisions. They are circumscribed by both
doctrinal and political limitations. The doctrine of sovereign
immunity does not extend to states' political subdivisions, for
example, and the protection of state sovereignty can be offset in
cases of racial and sex discrimination where a test of “heightened
scrutiny” is applied.3
See Nevada
Department of Human Resources v. Hibbs, 538 U.S.
721 (2003).
Most were
also decided by narrow 5–4 majorities, and so are highly vulnerable
to change. Yet, the consensus among scholars and Court watchers
alike is that these decisions represent important developments in
law and doctrine, altering both the role of the Court and the
balance of power in American federalism. But such judgments cannot
be considered complete without taking account of the very different
thrust of the Court's preemption jurisprudence.
The Face of Federal Preemption
The preemption doctrine derives principally from the Supremacy Clause of
the U.S. Constitution. When national and state laws collide, federal law
must prevail.4
Alexander Hamilton makes
this point clear in the Federalist No. 22. See The
Federalist Papers (New York: New American Library,
1961), 143–52.
Determining if that collision has
occurred is an often overlooked but important part of the U.S. Supreme
Court's adjudication of federalism. In theory, preemption questions can
be solved easily by explicit congressional provisions, but the theory
seldom matches reality. Most often the Court must determine whether,
lacking explicit guidelines, Congress implicitly intended to preempt
state lawmaking. The Court has long reasoned that implicit preemption
can occur under three conditions: (1) where congressional legislation is
so complete and the problem of such a national scope as to constitute
national occupation of the field, (2) where conflict between federal and
state laws is so pervasive that it is impossible for a party to comply
with both, or (3) where state law stands as an obstacle to the success
of federal goals (
Davis 2002).
Key to the Court's application of implicit preemption is the often-stated
presumption against preemption. Justice William O. Douglas's habitually
repeated assertion that in preemption cases the court must “start with
the assumption that the historic police powers of the States were not to
be superceded by the Federal Act unless that was the clear and manifest
purpose of Congress” (Rice v. Santa Fe Elevator
Corporation (1947), 230) has become the
obligatory standard for preemption cases. Historically, it is not clear
that the presumption against preemption has ever been as controlling as
the Court would have us believe (Davis 2002).
It is clear, however, that the Rehnquist Court, although occasionally
reviving the Douglas quote, has largely reversed the presumption to
favor preemption. Paradoxically, the Court noted for breathing new life
into the doctrine of dual federalism has repeatedly asserted the
supremacy of national over state law, even when Congress explicitly
allowed room for state lawmaking. States often have reborne the burden
of proving that their laws were not preempted by national action.
State Laws with International Implications
In both 2000 and 2003, the Rehnquist Court dealt blows to state laws
that touched on matters of foreign affairs. The first of the cases
(Crosby v. National Foreign Trade
Council (2000)) evolved out of a Massachusetts
law that banned state agencies from contracting for goods or
services with any company doing business with Myanmar (formerly
Burma), a nation with an undeniable record of human rights
violations. Subsequent to the Massachusetts action, Congress enacted
mandatory and conditional sanctions on Myanmar. Speaking for a
unanimous court, Justice David Souter ruled that the Massachusetts
law was preempted by congressional action, even though Congress had
not explicitly preempted state activity. Although acknowledging that
there was no conflict between state and national law, Souter
concluded that there was implied preemption. The failure of Congress
to explicitly preempt state law could not, he argued, be read as
approval for state action. Moreover, the Massachusetts law, while
generally in consort with national goals, could not stand a test of
preemption because it limited the president's capacity to negotiate
effectively with foreign nations.
Similarly, in 2003 the Court, with Justice Souter again writing the
opinion, struck down a California law that required insurance
companies doing business in the state to disclose certain specified
information about Holocaust-era insurance policies they or any
related insurers had issued in Europe between 1920 and 1945 (American Insurance Association v.
Garamendi (2003)). Failure to comply resulted in
a mandatory suspension of the insurer's license to do business in
the state. The act was preempted, the five-member majority argued,
because it interfered with the president's ability to conduct the
nation's foreign policy. Specifically, Justice Souter pointed to a
series of executive agreements that the president had negotiated. As
even Souter acknowledged, however, the United States as amicus was
unable to find a preemption clause in any of the agreements.
Clearly, for the Rehnquist Court, any state activity that touches on
foreign affairs—even when it involves the essence of police powers
as the licensing of businesses does—is presumed preempted. In both
the Crosby and Garamendi cases, the states were
required to prove that the laws in question were not preempted by
federal action even though there was no evidence of a conflict
between the state laws and national policy. In both cases the
possibility that such conflict might occur was sufficient to invoke
preemption by a dormant foreign affairs power.
Preempting Tort Recoveries and Limiting State Regulatory
Activities
No issue is more central to the states' police powers than common law
tort remedies. Nevertheless, the Rehnquist Court has struck a broad
slash through these traditional remedies by invoking preemption.5
For a thorough analysis of the
Court's use of preemption in state tort law, see James B
Staab (2003). See also, Erwin A.
Chemerinsky (2004).
In 1992, for instance, the Court relied upon the 1969 Public
Health Cigarette Smoking Act to preempt some of the claims
against a tobacco company (Cipollone v.
Liggett Group (1992)). That act contained a
preemption clause that stated: “No requirement or prohibition based
on smoking and health shall be imposed under State law with respect
to the advertising or promotion of any cigarettes the packages of
which are labeled in conformity with the provisions of this Act.”
Rose Cipollone, suffering from lung cancer, sued three tobacco
companies alleging that the companies were, under New Jersey common
law, guilty of failure to warn, breach of express warranty,
fraudulent misrepresentation, and conspiracy to defraud. Justice
John Paul Stevens, writing for the majority, concluded that
some—although not all—of the common law claims were preempted by the
1969 Act. To reach this conclusion Justice Stevens argued that
common law actions based on state law constitute “requirement or
prohibition” preempted by the Act. Although the majority let some of
Cipollone's claims go forward as not preempted, Justice Antonin
Scalia, in a separate opinion joined by Justice Clarence Thomas,
would have preempted all of the common law claims.
Although not a common law tort issue, the interests of tobacco
companies prompted the Court to invoke preemption against a
Massachusetts law regulating the placement of advertisements
promoting cigarettes (Lorillard Tobacco Co.
v. Reilly (2001)). Massachusetts had prohibited
signs and poster advertising of cigarettes within 1,000 feet of a
school. Relying on the same language at issue in Cipollone,
Justice Sandra Day O'Connor rejected the claim that the state was
simply regulating the location of the advertisements, not their
content. Although she found the distinction between location and
content interesting, she concluded that permitting states to
regulate the placement of advertisements could lead to blanket
prohibition of cigarette advertising.
After a 1987 automobile accident that left her seriously injured,
Alexis Geier sued the manufacturer claiming that failure to install
airbags constituted a design defect responsible for the severity of
her injuries (Geier v. American Honda Motor
Co (2000)). Under the National Traffic and
Motor Vehicle Safety Act of 1987, automobiles were required
to have passive restraint systems, but they could elect to install
airbags or lap and shoulder belts. Given this language, the
automobile manufacturer argued that, because they were in compliance
with federal law, Geier's suit was preempted. The act, however, had
a savings clause specifying that compliance with federal safety
standards did not provide exemptions from liability under common law
actions. Nevertheless, the Court dismissed the importance of the
savings clause, ruling instead that common law remedies were
preempted by federal law. Justice Stephen Breyer, writing for the
majority, concluded that despite the language of the savings clause,
allowing state liability suits would conflict with federal law. The
existence of state remedies would, according to the Court,
constitute an obstacle to national safety goals, the most nebulous
of the categories of implied preemption. Indeed, Justice Breyer went
so far as to say that the savings clause did not, as Geier argued,
indicate that Congress intended to permit state suits.
“State's Rights Nationalists” and Results-Oriented
Jurisprudence
When it comes to state's rights, the current Court seems to give with one
hand and take away with the other. As many commentators have observed,
the Rehnquist Court has done more to recreate dual federalism than any
Court since 1937. Nevertheless, when it comes to the actual use of state
power, giving substance to the police powers, the Rehnquist Court has
been surprisingly active in invoking preemption to curtail state
activity.
This finding is all the more remarkable because the paradoxical results
are produced largely by the same majorities. The same justices who
produced the decisions in Lopez, Printz,
Morrison, and Seminole Tribe have consistently
invoked and broadened preemption thwarting state power; ignoring along
the way the presumption against preemption. Moreover, the Rehnquist
Court has consistently failed to provide specific constitutional limits
to national power over the states as it has moved from one preemption
case to the next. Justice Scalia, in particular, has demonstrated a keen
appetite in the preemption cases for a stronger role for the national
government.6
There are some exceptions
to this general tendency, however. In one of his rare majority
opinions on preemption, Scalia found no national preemption when
Virginia attempted to include a personal injury award as income
when determining eligibility for Aid to Families with Dependent
Children benefits (Lukhard v. Reed, 481 U.S. 368 (1987)).
At the same time, the
Court's liberals have been more likely, although not consistently, to
take seriously the presumption against preemption. As Ernest Young
summarized it, “the four
Lopez dissenters are pretty
consistently ‘better’ for the states in preemption cases” (
Young 2004, 50).
Justice Stevens in his Lorillard dissent noted the irony of the
Court barring states in their efforts to protect children from
advertisements for dangerous products, given that it had earlier
forbidden the national government from conducting similar activities. As
Young pointed out, “Even more ironic was the lineup, which featured
exactly the same five-four split as in Lopez, except that the
putatively pro-states Justices voted to strike down the state law”
(Young 2004, 31).
Of course, the irony exists only if the decisions are seen as driven by
federalist principles. If we assume that the decisions are instead
results-oriented choices, motivated by political values, the paradox is
resolved. The common thread in the major preemption cases, for example,
is that the Court's decisions promoted the interests of business,
freeing it of some state regulation or liability.
Such conflicts between federalism principles and conservative policy
choices are not unique to the Supreme Court. The same discrepancy has
been found in the Executive Branch and Congress as well. Our own
research on decision making in the Reagan administration concluded
that:
Forced to choose between policies supportive of its federalism
objectives–devolution, enhanced state autonomy, and balanced
intergovernmental relationships–and those supportive of other
priorities—reduced federal domestic spending, lighter regulatory
burdens on the private sector, and conservative social policy
objectives—the [Reagan] administration chose, in each case
examined here, a course that was openly or implicitly contrary
to its stated intergovernmental goals. (Conlan 1986, 44)
A similar pattern has been seen, at times, in the administration of
George W. Bush, which has overseen the most profound expansion of
federal involvement into traditional realms of state and local
authority—particularly education and law enforcement—since the
1960s.
Congressional conservatives have found it equally difficult to constrain
their activist policy tendencies when the goals conflict with their
states rights rhetoric. One study of congressional mandating in the
1980s found that Republicans were just as supportive of new federal
mandates as Democrats (Posner 1996). The only
difference was policy substance. Democrats favored the enactment of new
mandates on behalf of labor and environmental issues, while Republicans
favored mandates to aid business and advance conservative social
policies.
Thus, the Court has considerable company when it comes to tailoring its
decisions to the policy preferences of the majority. But this is a far
cry from developing a comprehensive and consistent jurisprudence of
federalism, and it lends little support to the notion that there is now
a “new federalist” majority on the Court. There is nothing new about
implementing one's policy agenda on a national scale to take advantage
of a working political majority in Washington. At the very least, it is
now clear that inferences about a new judicial federalism in the
Rehnquist Court cannot be considered complete without accounting for
decisions involving federal preemption.
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