The Rehnquist Court has revived Ronald Reagan's attempts to gut the New Deal, Great Society and civil rights laws enacted to help the have-nots of American society. Its weapon of choice has been the states' rights doctrine. Just as during the New Deal, when this doctrine was also invoked against the expansion of federal power that was used in the interests of ordinary people, the Rehnquist Court's seemingly neutral states' rights rhetoric and argumentation have been a fig leaf to cover up more tangible interests like race and money.
This is not new. Throughout our history, states' rights rhetoric has been used for regressive causes. It has been an especially favored strategy since the Civil War, because the two great transfers of power to the federal government at the expense of the states, at which this strategy has been aimed–the post-Civil War amendments and the New Deal–have also been reform movements threatening conservatives with respect to race and class.
The anti-Washington leader on the Court is Chief Justice William Rehnquist. Raised in a Roosevelt-hating family, he has been an archconservative since his earliest days. His first opportunity to strike at federal power came in 1976 in National League of Cities v. Usery, a case involving the 1974 amendments to the Fair Labor Standards Act, which extended minimum-wage and maximum-hours requirements to state and local governments. Cobbling together a 5-to-4 majority, he got the Court to strike down the 1974 extension.
For authority, Rehnquist looked to the Tenth Amendment, which provides that "the powers not delegated to the United States by the Constitution…are reserved to the states." The amendment does not, however, specify what is "reserved," so Rehnquist created a new doctrine based on the "policy" of the Tenth Amendment, which he said authorized the courts to prohibit the federal government from regulating the states' "traditional functions" if doing so "impaired their sovereignty" and "their ability to function effectively in a federal system."
The result was judicial confusion, as courts struggled with these vacuous criteria. After nine years, the Court overruled National League of Cities, but in 1990 the tide turned again. Avoiding constitutional issues, a 5-to-4 majority in Gregory v. Ashcroft interpreted a federal law banning age discrimination as not applying to state judges.
After Clarence Thomas joined Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia on the Court in 1991, cementing the conservative majority, the constitutional assault on federal power went into high gear. The first target was a radioactive-waste-disposal statute, which was based on a compromise that the states themselves, including New York, had hammered out. The act imposed sanctions on those states that didn't implement the statute, and for this reason, the majority struck it down in New York v. United States (1992). Unable to rely on specific language in the Constitution, the majority used its own conception of the constitutional "framework" and "structure," and condemned the act for "commandeering" state officials to implement it, ignoring in the process numerous historical examples of state implementation of federal laws. "Accountability is…diminished" by such state enforcement, said Justice O'Connor for the Court, arguing that state officers who had to implement burdensome federal directives would be blamed for them. The argument is ludicrous–people in the radioactive-waste business knew the rules were set by the Feds. The Court used the same dubious "accountability" reasoning five years later in Printz v. United States to slap down the Brady gun control bill's requirement that local law enforcement officers check the backgrounds of prospective gun purchasers.
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The hollowness of the conservatives' concern for states' rights was revealed in the New York v. United States decision. The radioactive-waste law had been promoted by the states themselves. But Justice O'Connor rationalized that the anticommandeering principle was not for the benefit of the states but to preserve "the liberties" of the people; the states' consent to the law was irrelevant. But how are the people's "liberties" protected when the wishes of their elected representatives are ignored? And is not accountability diminished if those representatives cannot act as they believe their constituents want?
The conservative majority's fickleness toward state interests is not a rare phenomenon. They have had no trouble striking down hundreds of state and local affirmative action plans, voluntary desegregation plans and electoral districting plans that created majority-black districts. And they haven't hesitated to strike down zoning and environmental laws in the name of property rights.
Four years after New York v. United States was decided, the trickle of antifederal decisions became a flood. It began with an attack on the commerce clause, the source of federal power over the national economy. Recognizing the interrelatedness of almost all parts of the economy, the Court had upheld every assertion of federal power under the commerce clause since 1937. In 1995 that changed. In Lopez v. United States the usual 5-to-4 majority struck down a federal law criminalizing the possession of guns in a school zone, because no economic transaction was involved and there was no Congressional finding of an effect on interstate trade. The obvious impact of school violence on the national economy was dismissed, and the fact that most guns move in interstate trade was ignored. Four years later, in United States v. Morrison, the same 5-to-4 majority used the same argument to strike down the Violence Against Women Act: It was not an "economic" matter, even though there was "a mountain of data" that violence against women costs the economy billions each year. Nor did the Court give any weight to the overwhelming state support for the act.
In 1996 the Court also resurrected a state sovereign-immunity doctrine that had been repudiated just seven years earlier. The Eleventh Amendment denies federal courts jurisdiction over suits by citizens of one state against another state. Over the next four years, the conservative bloc used this doctrine, which is based on the now discredited "the King can do no wrong" philosophy, as the basis for allowing a state to halt damage suits against itself by any person, even in state courts, and even if the state engages in what is ordinarily private business that wrongly damages someone. Nothing in the language of the Constitution creates such an immunity, and certainly not for federally created rights. That did not faze these Justices, however, all of whom have regularly excoriated liberal judges as "activists" when the latter sought to promote individual rights and did not stick closely to the text.
The next year, the conservatives turned to the Civil War Amendments. Section 5 of the Fourteenth Amendment authorizes Congress to enforce that amendment by appropriate means. In 1990 the Court narrowly adopted a Scalia opinion overturning a twenty-seven-year-old doctrine by which religious minorities were exempt from having to comply with unnecessary burdens that interfered significantly with their worship (Employment Division v. Smith). Congress responded by almost unanimously passing the Religious Freedom Restoration Act (RFRA) to reinstate that possibility.
It didn't last long. In a 6-to-3 decision, the Court ruled that Congress had no power to enlarge constitutional rights beyond the limits the Court had set. RFRA failed as a remedy, according to the Court, because it burdened too many state activities too much–even though the states had lived comfortably for over a quarter-century with the doctrine RFRA sought to reinstate.
This past term, the conservative majority struck twice at Section 5, once in dismissing a suit by older workers under the Age Discrimination in Employment Act (Kimel v. Florida Board of Regents) and again in the course of overturning the Violence Against Women Act, despite support for the act from thirty-six states. This coming term the Court will consider suits by state employees against a state for violating disability rights statutes; their prospects are bleak.
There have been a few isolated losses for the states' rights bloc: Kennedy jumped ship to make a 5-to-4 majority to strike down a state term-limits law, and this past term the Court upheld a law banning the sale by states of private data collected from driver's-license applications. But such decisions have been few and far between.
Academic commentators disagree on how harmful the conservatives' federalism rulings have been. They have unquestionably spawned confusion and litigation over federalism issues, thereby overburdening a federal judiciary that is already creaking under the weight of its caseload. And a good number of Americans–how many is impossible to tell–have been denied a meaningful remedy for blatant violations of their rights under federal law.
One thing is clear: All of US history demonstrates unambiguously that have-nots and outsiders fare poorly at the state level. The Rehnquist Court's paeans of praise for state government are belied by reality. Voting turnout in state and local elections is notoriously low. Many state legislators are ill-paid part-timers without staff, and are at least as susceptible to lobbyists as Congress, if not more so. Conflicts of interest are rife–one recent study found that one-fifth of state legislators serve on legislative committees that oversee their private businesses. And concern for the poor, the weak and people of color is often negligible or nonexistent.
If the current federalist assault on the federal government continues–and if George W. Bush becomes President it will–those already shortchanged by our society will do even worse.
