Differing Paradigms, Similar Flaws: Constructing a New Approach to Federalism in Congress and the Court

notions of sovereignty and structural protections than on actual outcomes. This has manifested itself both in the recent movement away from Garcia and in the underlying Garcia analysis itself. One of the formalistic rubrics employed by the Court has been the notion of a sphere of state activity inviolate from federal interference. Originated in National League of Cities, this concept resurfaced in Gregory v. Ashcroft which viewed the structure of the state government and the character of those who exercise government authority as the means through which "a state defines itself as a sovereign."" This reliance on a sphere of inviolate state activity was expanded both in New York and in Lopez. In New York the Court struck down a portion of the Low-Level Radioactive Waste Policy Amendments Act of 1985 on the grounds that it "commandeered" states into the service of the federal government. 45 The Court held that while Congress may attach conditions under its spending power or offer states a choice between regulating according to federal standards or federal preemption, it may not compel states to regulate a certain way, thereby commandeering state machinery for its purposes. This prohibition did not even contemplate a balancing test to consider the countervailing federal interest. 46 Lopez looked to formalistic distinctions between state and federal powers even further. The Court rejected the Government's argument that Congress could regulate possession of a firearm (even when that firearm may have had nothing to do with interstate commerce), ruling that this would justify congressional regulation of "any activity that it found was related to the economic productivity of individual citizens," including family law, criminal law, or education "where states historically have been sovereign." It would "bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the states" and would mean that "there never will be a distinction between what is truly national and what is 44. 501 U.S. at 460. The Court held that the authority to determine the qualifications of a state's most important government officials "may be inviolate" as against Congress' powers under the Interstate Commerce Clause. Justice O'Connor noted, however, that this authority would still be constrained by the Fourteenth Amendment. 45. Specifically, the Court struck down as violating the Tenth Amendment and exceeding the Congress' powers under the interstate commerce clause a "take title provision" that required states unable by January 1, 1996 to dispose of the low-level radioactive waste generated within their borders, upon the request of the generator or owner of the waste, to take title to and possession of that waste, and be liable for all damages incurred by the generator or owner for the state's failure to take possession of the waste. 46. "No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate." 505 U.S. at 178. Constructing a New Federalism Symposium Issue: 187, 1996 truly local." 47 This focus on abstract notions of state sovereignty produced a particularly ironic result in Seminole Tribe: while the Court struck down that portion of the federal statute which enabled Indian tribes to sue states in federal court for failure to negotiate in good faith, it allowed to stand the lower court's ruling enabling tribes to appeal directly to the Secretary of the Interior to prescribe a solution.48 The protection of state sovereignty in theory limited state options in fact. In its decisions retreating from Garcia, therefore, the Court has increasingly focused on formalistic notions of inviolate spheres of state activity, mechanistically applying those notions to the case at hand.4 9 While the Garcia approach leads to a different result, it too is grounded in a formalistic analysis of the federal-state relationship, based on an almost reflexive reliance on the structural protections of states in the Constitution,5' a reliance which is inconsistent both with recent Court decisions and with reality. As an initial matter one wonders how much of this structural protection survives the reasoning of U.S. Term Limits v. Thornton.5' In Thornton, the majority could not have been clearer about where members of Congress owe allegiance: "In that National Government, representatives owe primary allegiance not to the people of a state, but to the people of the Nation." 52 The 47. 115 S. Ct. at 1632. Justice Kennedy's concurrence (joined by Justice O'Connor) continued this focus on sovereignty, with an implicit nod to NLC's original "traditional governmental functions" test. He argued that the Court must "inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern," noting that in such circumstances, "we have a particular duty to insure that the federal-state balance is not destroyed." 115 S. Ct. at 1640. Note the tension between the analyses of accountability in New York and in Lopez. In the former, O'Connor expressed concern that commandeering of State processes would blur accountability, as the public would not know whom to blame. In the latter, the underlying assumption was that, with or without commandeering, the public followed traditional notions of which areas were federal responsibilities and which were state responsibilities. 48. See supra note 43, at 5, 17. 49. Admittedly, the chronology may be the reverse, as Justices may reason backwards from their conclusions to definition of the inviolate nature of that activity. This would merely reinforce the point, however, that the analysis is based on underlying assumptions of the proper extent of state and federal activities, instead of rigorous consideration of the benefits of federalism. 50. In Garcia, the Court found that "the principal means chosen by the Framers to ensure the role of the States in the federal system lies in the structure of the Federal Government itself." 469 U.S. at 550. The Court cited the state role in the selection of the executive and legislative branches of the federal government, including control of the qualifications of voters for House races under U.S. CONsr. art. I, § 2; states' role in electing Presidents under U.S. CoNSr. art. I, § 1; the requirement of equal representation of each state in the Senate and the initial intention of having Senators selected by state legislatures, under U.S. CoNsT. art. I, § 3; and the Article V requirement that no state be divested of its equal representation in the Senate without that state's consent. 51. 115 S. Ct. 1842, 1855 (1995). 52. 115 S. Ct. at 1855. The Court noted that members of Congress are officers of the entire Union as much as is the President; that all representatives together decide the qualifications of any member; and that representatives were intentionally not paid by the states. The Court consistently hearkened back to these key factors: the Framers "feared that the diverse interests of the States would undermine the National Legislature"; Madison feared that allowing States to differentiate between the qualifications for State and federal electors "would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone." A New Approach to Federalism Court concluded that "[t]he Congress of the United States, therefore, is not a confederation of nations in which separate sovereigns are represented by appointed delegates, but is instead a body composed of representatives of the