Enhancing Government: Federalism for the 21st Century / Edition 1

by Erwin Chemerinsky

Overview

Federalism—the division of power between national and state governments—has been a divisive issue throughout American history. Conservatives argued in support of federalism and states' rights to oppose the end of slavery, the New Deal, and desegregation. In the 1990s, the Rehnquist Court used federalism to strike down numerous laws of public good, including federal statutes requiring the clean up of nuclear waste and background checks for gun ownership. Now the Roberts Court appears poised to use federalism and states' rights to limit federal power even further.

In this book, Erwin Chemerinsky passionately argues for a different vision: federalism as empowerment. He analyzes and criticizes the Supreme Court's recent conservative trend, and lays out his own challenge to the Court to approach their decisions with the aim of advancing liberty and enhancing effective governance. While the traditional approach has been about limiting federal power, an alternative conception would empower every level of government to deal with social problems. In Chemerinsky's view, federal power should address national problems like environmental protection and violations of civil rights, while state power can be strengthened in areas such as consumer privacy and employee protection.

The challenge for the 21st century is to reinvent American government so that it can effectively deal with enduring social ills and growing threats to personal freedom and civil liberties. Increasing the chains on government—as the Court and Congress are now doing in the name of federalism—is exactly the wrong way to enter the new century. But, an empowered federalism, as Chemerinsky shows, will profoundly alter the capabilities and promise of U.S. government and society.

Product Details

ISBN-13:	9780804751995
Publisher:	Stanford University Press
Publication date:	05/22/2008
Pages:	312
Product dimensions:	6.10(w) x 8.90(h) x 0.80(d)

About the Author

Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke University. In July 2008, he will become the founding Dean of the Donald Bren School of Law at the University of California, Irvine. He is the author of four books, including, Federal Jurisdiction (2003) and Constitutional Law: Principles and Policies (2002). He frequently argues appellate cases, many in the United States Supreme Court.

Read an Excerpt

ENHANCING GOVERNMENT

FEDERALISM FOR THE 21ST CENTURY

---

By Erwin Chemerinsky

STANFORD LAW BOOKS

Copyright © 2008 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-5198-8

---

Chapter One

The Paradox of Post-1937 Federalism: How Did We Get Here and Where Are We Going?

AS A TEACHER, DURING the 1980s and early 1990s I often was struck by the seeming inconsistency in the cases I taught in both my Federal Courts and Constitutional Law courses. Many mornings across many semesters, in Constitutional Law, I taught cases like United States v. Darby and Garcia v. San Antonio Metropolitan Transit Authority that eschew any use of federalism considerations as a limit on federal legislative power. Then, in the afternoon, I taught Federal Courts and looked at cases like Younger v. Harris that proclaim the importance of "Our Federalism" as a major limit on federal judicial authority.

Indeed, I believe that this paradox was at the core of the Supreme Court's handling of federalism issues from 1937 until the 1990s. Federalism was not used by the judiciary as a limit on federal legislative power, but federalism was used by the judiciary as a limit on federal judicial power.

In this chapter, I first describe the seeming inconsistency in the cases concerning federal legislative and federal judicial power. Then I suggest that the Court's premises do notjustify the difference in approach; the justifications for the absence of federalism as a limit on federal power apply as much to the federal judiciary as to Congress, and the justifications for the use of federalism as a limit apply as much to Congress as to the courts. More importantly, the decisions in each area rest on premises that are highly questionable.

I then suggest that the decisions of the Rehnquist Court bring an end to this paradox by reviving the Tenth Amendment as a constraint on congressional actions and by creating judicially enforced limits on the scope of Congress's commerce clause power, which allows the legislature to regulate commerce with foreign nations and Indian tribes as well as among the states. This tendency toward restraining congressional authority is reflected most notably in the following cases: New York v. United States; United States v. Lopez; Seminole Tribe of Florida v. Florida; City of Boerne v. Flores; Printz v. United States; Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank; Alden v. Maine; and United States v. Morrison. I review these cases in some detail, both to show that they mark an end to the paradox described in the first part of the chapter and to provide a basis for criticizing them in subsequent chapters.

Interestingly, in the first few years of the twenty-first century, the Supreme Court's federalism decisions have come down in favor of federal power and against the states' rights position. I suggest that these decisions do not mark a reversal of a trend; the Court has not overruled earlier decisions, but neither has it extended them. I conclude by suggesting that these past few years are likely to represent a pause in aggressive judicial protection of federalism. Based on all that is known about Chief Justice John Roberts and Justice Samuel Alito, the Supreme Court will no doubt significantly expand the protection of federalism and limit federal power in the years ahead. This means the Court will intensify efforts to limit both federal legislative power and federal judicial power in the name of states' rights and federalism.

The focus of this chapter is thus descriptive, seeking to explain where the law is and how it got there. Subsequent chapters are critical of this approach to federalism, and the final chapters in the book offer an alternative vision of federalism.

THE PARADOX DESCRIBED: FEDERALISM LIMITS ON JUDICIAL POWER, BUT NOT LEGISLATIVE POWER

The paradox described above manifested itself early in the emergence of modern, post-1937 constitutional law. In National Labor Relations Board v. Jones & Laughlin Steel Corp., United States v. Darby, and Wickard v. Filburn, the Supreme Court made it clear that federalism would not be used as a limit on congressional power. The Court rejected the core notion of dual federalism that there is a zone of activities that is left exclusively to the states for regulation and control.

From the late nineteenth century until 1937, the Supreme Court used this notion of dual federalism both to construe narrowly the scope of congressional power under Article I of the Constitution and to invalidate laws as violating the Tenth Amendment (which provides that all powers not granted to the United States are reserved to the states and the people, respectively). For example, the Court restrictively defined the meaning of "commerce" to exclude mining, manufacture, and production from the scope of congressional regulatory power. Additionally, the Court held that federal laws regulating aspects of business such as production violated the Tenth Amendment. The Tenth Amendment, the Court expressly declared, reserves a zone of activities to the states and thus invalidated federal laws that limit the use of child labor, that provide subsidies to agriculture, and that require a minimum wage on the grounds that they interfered with state sovereignty and violated the amendment.

But National Labor Relations Board v. Jones & Laughlin Steel Corp., United States v. Darby, and Wickard v. Filburn ended the doctrine of dual federalism. No longer were considerations of federalism used as the basis for narrowly defining Congress's power. No longer was the Tenth Amendment a restraint on federal legislative authority. Darby declared that the Tenth Amendment is "but a truism," that all power not granted to Congress are reserved to the states. In Darby, the Supreme Court upheld the federal law providing for the minimum wage. In other words, the Tenth Amendment simply was a reminder that Congress could legislate only if it had express or implied authority. The Tenth Amendment did not reserve to the states a zone of activities for their exclusive control.

Almost simultaneous with the demise of federalism as a limit on congressional authority, the Court proclaimed the importance of federalism as a limit on federal judicial power. Erie Railroad Co. v. Tompkins held that the use of federal common law in diversity cases was an unconstitutional usurpation of state power. At the same time that the Court was rejecting the Tenth Amendment as a limit on Congress, the Court apparently was relying on it to explain that federal common law had "invaded rights which ... are reserved by the Constitution to the several states."

There was a striking tension between Erie's reliance on the Tenth Amendment and Darby's almost simultaneous proclamation that the Tenth Amendment is but a truism. Even so, the analysis of the Tenth Amendment in either case was not merely rhetorical or superfluous to the result. Each case set the paradigm for the Supreme Court's use of federalism for at least the next half century. The ruling in Erie, that dramatically changed litigation in the United States, was very much based on the Tenth Amendment. The Court gave three reasons for overruling Swift v. Tyson (which had provided that federal courts were to develop federal common law) and holding that federal courts should apply state law in diversity cases. On examination, though, it is clear that only the Tenth Amendment explains the decision.

First, the Court said that new historical research cast doubt on the validity of the holding in Swift v. Tyson. Specifically, Justice Louis Brandeis, writing for the majority, cited the research of Charles Warren. Warren said that he found an earlier handwritten draft of the Judiciary Act of 1789. But this argument, by itself, clearly did not justify overruling Swift v. Tyson. Swift interpreted a federal statute, the Rules of Decision Act, which provided that federal courts were to use state law as their basis for decisions in the absence of federal law. Congress, of course, could amend the law if it disagreed with the Court's decision, such as if Congress was persuaded by Warren's research. Judge Henry Friendly explained: "If ever Congress' reenactment of a statute or failure to alter it could be fairly taken as approving a prior judicial interpretation, the unchanged existence of section 34 for a century after Story's construction was such a case."

Second, Swift v. Tyson was overruled because "[e]xperience in applying [it] ... had revealed its defects, political and social; and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity; and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties." Without a doubt, the strongest argument for overruling Swift was its pernicious effects on the fair administration of civil justice. Swift encouraged forum shopping, and it was unjust that the results in a case depended on the citizenship of the parties. However, again, this argument did not justify the Court overruling Swift. The ill effects of using federal common law in diversity cases could have been demonstrated to Congress and it was for Congress to decide whether to revise the federal statute.

Indeed, Justice Brandeis expressly admitted the inadequacy of the first two arguments to justify overruling Swift. Justice Brandeis declared: "If only a question of statutory construction were involved, we would not be prepared to abandon a doctrine so widely applied through nearly a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so." In other words, the ruling in Erie was based on the third argument: that applying federal common law in diversity cases violated the Tenth Amendment. Justice Brandeis quoted Justice Oliver Wendell Holmes, indicating that Swift v. Tyson represented an "unconstitutional usurpation of powers by courts of the United States." There was surprisingly little explanation in the opinion as to why Swift v. Tyson usurped states' rights, but it is clear that the Erie very much rested on this conclusion. Erie's use of federalism as a limit on federal judicial power reflected an approach that is followed to this day.

The importance of the decision cannot be overstated. Erie substantially changed the nature of law practice. A huge body of federal common law was simply wiped from the books. Attorneys' choice of forum decisions was radically altered as was federal and state relations. Unless there is a federal constitutional, treaty, or statutory provision, state law controls in all transactions and in all courts in the country. As Erie proclaimed, "There is no general federal common law." Erie made clear that federalism provides a crucial limit on the scope of federal judicial power.

United States v. Darby, decided just three years later, is no less significant in defining a paradigm for federalism, especially when looked at together with National Labor Relations Board v. Jones & Laughlin Steel Corp., which preceded Erie by a year, and Wickard v. Filburn, which succeeded Darby by a year.

Jones & Laughlin Steel involved a constitutional challenge to the National Labor Relations Act, which gave employees the right to bargain collectively, prohibited unfair labor practices-such as discrimination against union members-and established the National Labor Relations Board to enforce the law. The law contained detailed findings on the relationship between labor activity and commerce. The act applied when there was an effect on commerce and, in fact, it expressly defined "affecting commerce" as meaning "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce."

The Court initially explained how the Jones & Laughlin Steel Corporation was clearly a part of interstate commerce. It was the fourth largest producer of steel, with factories in Pennsylvania; mines in Pennsylvania, Minnesota, Michigan, and West Virginia; steel fabricating plants in Louisiana and New York; warehouses in Illinois, Michigan, Tennessee, and Ohio; and steamships operating on the Great Lakes. The Court noted that overall the steel industry employed 33,000 and 44,000 individuals to mine ore and coal, respectively; 4,000 to quarry limestone; 16,000 and 343,000 to manufacture coke and steel, respectively; and 83,000 to transport its products.

In light of these findings, Jones & Laughlin Steel does not at first seem to be a radical departure from the earlier decisions. The Court explained how the steel business was part of the stream of commerce and how labor relations within it had a direct effect on this commerce. However, there was no doubt that the decision marked a major shift in the law. The Court flatly declared that "the fact that the employees ... were engaged in production is not determinative." The decision spoke broadly of Congress's commerce power: "The fundamental principle is that the power to regulate commerce is the power to enact 'all appropriate legislation' for 'its protection and advancement,' 'to adopt measures' to 'promote its growth and insure its safety,' 'to foster, protect, control, and restrain.' That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it."

Although the Court's holding in Jones & Laughlin might be squared with the decisions of the earlier era, the Court clearly signaled a major change in direction. In fact, in a companion case, which has received much less attention, the Court upheld the application of the National Labor Relations Act to a relatively small clothing manufacturer.

The radical nature of the Court's shift was apparent in the 1941 decision, United States v. Darby. Darby involved a challenge to the constitutionality of the Fair Labor Standards Act of 1938. This act prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage (25 cents per hour at that time). In upholding the act, the Court departed from all aspects of the pre-1937 commerce clause doctrines.

The Court rejected the view that production was left entirely to state regulation, explaining that Congress may control production by regulating shipments in interstate commerce. The decision said: "While manufacture is not of itself interstate commerce, the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of commerce." The Court spoke repeatedly of "the plenary power conferred on Congress by the commerce clause."

Perhaps most significantly, the Court expressly overruled Hammer v. Dagenhart and emphatically rejected the view that the Tenth Amendment limits Congress's power. In its most famous words, the Court declared that "[t]he amendment states but a truism that all is retained which has not been surrendered." This means that a law is constitutional so long as it is within the scope of Congress's power; the Tenth Amendment would not be used by the judiciary as a basis for invalidating federal laws.

The third major decision, Wickard v. Filburn left no doubt that the pre-1937 commerce clause doctrines had been completely abandoned. Under the Agricultural Adjustment Act, the secretary of agriculture set a quota for wheat production in which each farmer was given an allotment. Farmer Filburn owned a small dairy farm in Ohio and grew wheat primarily for home consumption and to feed his livestock. His allotment for 1941 was 222 bushels of wheat, but he grew 461 bushels and was fined $117. He claimed that federal law could not constitutionally be applied to him because the wheat that he grew for home consumption was not a part of interstate commerce.

Justice Robert Jackson wrote an opinion that upheld the application of federal law and ruled against farmer Filburn. The limits on commerce power that were enforced in the earlier era were flatly rejected. The Court stated: "[Q]uestions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce." In other words, the distinctions that were crucial in the earlier era-between commerce and production, and between direct and indirect effects on commerce-no longer were followed. The Court declared: "Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be 'production,' nor can consideration of its economic effects be foreclosed by calling them 'indirect.'"

(Continues...)

---

Excerpted from ENHANCING GOVERNMENT by Erwin Chemerinsky Copyright © 2008 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---

Table of Contents

Acknowledgments     ix
Introduction     1
The Paradox of Post-1937 Federalism: How Did We Get Here and Where Are We Going?     15
The Formalism of the Federalism Decisions and Its Failure     57
The Values of Federalism     98
Conceiving Federalism as Empowerment, Not Limits     145
Federalism as Empowerment: Redefining the Role of the Federal Courts     168
Empowering States: A Different Approach to Preemption     225
Conclusion     246
Notes     249
Index     283

Editorial Reviews

"Erwin Chemerinsky is one of the nation's leading scholars of constitutional law. Enhancing Government makes an important contribution to an area that has aroused great interest among academics, judges, politicians, and the general public. Chemerinsky's innovative approach sheds new light on one of the oldest and most significant areas of constitutional inquiry."

Emory University - Robert A. Schapiro

"Chemerinsky has taken on the formidable task of arguing for a new constitutional vision of federalism, which should be viewed not as a limit on federal power but as an empowerment at both the state and national level...This is an interesting read for constitutional lawyers." —CHOICE

From the Publisher

"The framers gave us federalism at the end of the eighteenth century. Enhancing Government is federalism's blueprint for the twenty-first century. Chemerinsky delivers a deathblow to the modern view that federalism serves to limit government action—and shows instead how federalism allows government to solve problems and to enhance individual liberties. Powerfully argued, erudite, and practical, this magnificent book is essential reading for every citizen."

Brooklyn Law School - Jason Mazzone

"...Chemerinsky is a brilliant constitutional law scholar whose perspective on federalism, preemption, and separation of powers should be studied carefully. ...Enhancing Government is worth reading for those interested not only in the state of legal relations between state and federal governments, but also in how those relations might evolve in the next few years."

The Federal Lawyer

"In Enhancing Government, Erwin Chemerinsky provides a kind of holograph of what federalism—as the federal-state relation is confusingly called—would resemble if the U.S. were to enter a period of liberal ascendancy. His timing could not be better, since the chance of such an ascendancy is not exactly remote: A Barack Obama presidency seems possible, together with a Democratic majority in both houses of Congress The great virtue of Mr. Chemerinsky's book is that it serves as a blueprint for the Obama administration and a fair warning to its opponents."

The Wall Street Journal