The Supreme Court's New Constitutional Federalism: Implications for Public Administration

In recent years, the United States Supreme Court has re-entered an arena that many thought that it had abandoned--interpreting the Constitution for what it says about the respective powers of the federal government and the states (Cooper 1988; Van Alstyne 1985). This new judicial federalism has signaled a shift in the legal basis of intergovernmental relations, and thus a shift in the environment of public administration as well (Dinan 1998; Prakash 1993; Rosenbloom and Ross 1998; Wise 1998). The latest pronouncements by the Supreme Court in cases in which federalism was the major focus suggest that a majority of the justices are determined to fill out their federalism doctrine. This activist federalism stance stands in marked contrast to the posture of the Court from the middle 1930s through the late 1980s. Of particular significance are the explicit pronouncements of the Court in several cases in the 1990s, which avowed that the Court would serve as a conscious arbiter of the respective powers of the national government and the states. What are the limits on the exercise of national power, and what are the implications for state autonomy? Further, has the Supreme Court now moved from a position where it consistently upheld assertions of national authority to one where it consistently strikes them down? In short, where does the balance lie? In order to examine these issues, cases in which the main issues of federalism were at stake will be analyzed. It appears that the Court's developing federalist stance with respect to the protection of state autonomy can be read as both more and less: While the Court has acted to limit the reach of federal power and to protect state prerogatives with greater frequency in some areas, it has confirmed federal expansion in others. If we focus only on cases pronouncing some limit on the expansion of federal power, it is easy to overlook areas in which the Court has confirmed the new exercises of federal power, not to mention its continuing acceptance of the accumulation of federal powers over the last five decades. A fuller picture comes into focus when we examine the various bases for the exercise of federal power and what the Court has said about them. The Commerce Clause and the Scope of Federal Authority The Commerce Clause(1) has long been the primary basis of Congress's regulatory legislation. As Justice Frankfurter pointed out long ago, the Court's Commerce Clause cases have been the chief source of adjudications regarding federalism. In recent years, the Supreme Court has made some significant interpretations of Congress's Commerce Clause authority that have had major implications for federalism. Prior to 1937, the Supreme Court had struck down a string of statutes on the grounds they exceeded Congress's powers under the Commerce Clause. However, in a series of decisions beginning with NLRB v. Jones and Laughlin (301 U.S. 1 [1937]) and culminating with Wickard v. Filburn (317 U.S. 111 [1942], the Court withdrew the full range of limits on federal power to regulate what its earlier judgments had constructed. These decisions essentially ended judicially enforceable limits in the most important federalism domains (Lessig 1995, 153). The result has been a continually expanding reach of federal regulatory power. Cases the Supreme Court did take that challenged federal power under the Commerce Clause were decided in favor of the federal government, leading many to wonder if the Court would recognize any limits on federal power. In fact, a leading constitutional legal scholar observed in the late 1980s: "Contemporary commerce clause doctrine grants Congress such broad power that judicial review of the affirmative authorization for congressional action is largely a formality" (Tribe 1988, 316). Beginning in the mid-1990s, this began to change. Building on its pronouncement in Garcia v. San Antonio Metropolitan Transportation Authority (469 U. …