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From their earliest days on the Supreme Court, Chief Justice William Rehnquist and retiring Justice Sandra Day O’Connor have worked to restrict the federal government’s authority to manage the national economy and to strengthen individual rights. With the aid of Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, they have enjoyed remarkable success. Scholars concurred that a federalism “revolution” had rewritten constitutional law. But in three recent decisions — Nevada v. Hibbs (2003), Tennessee v. Lane (2004), and Gonzales v. Raich (2005) — the states’ rights argument lost and federal statutes were upheld. Suddenly, some observers concluded that what seemed to be a revolution was only a “boomlet [that] has fizzled,” as Michael Greve of the conservative American Enterprise Institute put it. The Raich case in particular was called a “disaster” by the Cato Institute’s Roger Pilon, another outspoken assailant of federal power. All this led The New York Times’ respected Supreme Court reporter, Linda Greenhouse, to speculate that “What had seemed until very recently to be a legacy in the making, now appears evanescent, perhaps even illusory.” Hardly. With youthful replacements for O’Connor and Rehnquist, who will possibly retire soon (and possibly even more high court appointments for President George W. Bush), the federalism revolution is probably as safe today as it ever was — and probably safer. A few split decisions can hardly reverse 15 years of rulings. Usually in the majority since the 1990s, Rehnquist and O’Connor steadily trained their sights on the social welfare and civil rights lawmaking that began with the New Deal and continued into the 1970s and even the 1980s. (Only in the area of women’s rights did O’Connor consistently defect.) Their broad and deep federalism legacy produced key changes in how we understand the 11th Amendment, Section 5 of the 14th Amendment, the 10th Amendment, and the commerce clause. SHIELDING THE STATES The earliest federalism victory for Rehnquist came in an 11th Amendment case more than three decades ago. The 11th Amendment provides in its entirety: “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.” For years, there had been little litigation involving the amendment. Then in Edelman v. Jordan (1974), the newly appointed Justice Rehnquist put together a 5-4 majority to hold that states’ immunity from suits in federal courts barred aged, blind, and disabled Social Security recipients from suing individual state officials for past benefits wrongly withheld by the state. In response to the late Justice Thurgood Marshall’s contention that the states had impliedly waived their immunity by participating in the federal Social Security program, Rehnquist declared that such a waiver could be based only on the “most express language . . . or overwhelming implications from the text” of the statute. This was followed by another 5-4 decision in which Rehnquist joined, Atascadero State Hospital v. Scanlon (1985), reaffirming the “clear statement” doctrine. Today, both the prohibition on damages suits for past wrongs and the clear-statement doctrine are established 11th Amendment law and in no jeopardy. Twenty-two years after Edelman, in Seminole Tribe of Florida v. Florida (1996), now Chief Justice Rehnquist achieved one of his most significant 11th Amendment triumphs: the establishment of a sweeping state immunity from virtually all private suits to which the states had not consented. Ranging far beyond the text of the amendment, Rehnquist wrote that state sovereign immunity barred all attempts by Congress to allow suits against a state — except to enforce Section 5 of the 14th Amendment or unless the state waived its immunity. Subsequent decisions have abandoned any link to the constitutional text, ultimately barring federally authorized suits — even in state courts — in Alden v. Maine (1999). In all of these, O’Connor was part of the narrow 5-4 majority. UNDUE PROCESS The newly appointed Justice Rehnquist also struck quickly at Section 5 of the 14th Amendment, although his first effort failed. Section 5 states: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” It had been read as a broad grant of congressional power to enforce Section 1 provisions of the 14th Amendment stating: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In Hutto v. Finney (1978), Rehnquist wrote to urge that Section 5 be limited to equal protection cases and not apply to all rights “incorporated” in the 14th Amendment through the due process clause. Back then, he was in dissent. It took almost 20 years, but the assault on Section 5 ultimately succeeded. The change began with City of Boerne v. Flores (1997), a case in which the Court, speaking through Kennedy, ruled that Congress’ Section 5 power was limited to creating remedies that are “congruent” and “proportionate” to the “remedial or preventive object.” What that meant soon became clear. In a rapid-fire series of 5-4 decisions over the next few years, the Court struck down private suits against state agencies provided for under the Patent Remedy Act (1999), the Age Discrimination in Employment Act (2000), the Violence Against Women Act (2000), and Title I of the Americans with Disabilities Act (2001). In three opinions written by Rehnquist and one by O’Connor, the Court read Section 5 as an increasingly limited exception to the 11th Amendment restriction on Congress’ power to authorize suits. In the Violence Against Women Act case, the chief justice even held that the Section 5 exception does not apply in situations where a state wrongfully failed to act — although nothing in Section 5 draws a distinction between acts and failures to act. No one should expect that the Court, having gone that far on Section 5, will change its mind easily. THEY SEE ‘POLICIES’ The Court once described the 10th Amendment as simply a “truism.” It states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But Rehnquist and O’Connor found real limits reflected in that language. The first victory came in 1976, in National League of Cities v. Usery. In a 5-4 decision, Rehnquist wrote that while the amendment had no substantive content, it set forth a general constitutional “policy,” which in this case barred the federal government from requiring states to observe the minimum-wage and maximum-hour requirements of the Fair Labor Standards Act. The victory seemed short-lived. Joining the Court in 1981, O’Connor quickly found herself allied with Rehnquist on this issue on the losing side of two cases; she wrote for the dissent in Federal Energy Regulatory Commission v. Mississippi (1982) and joined the dissent in Equal Employment Opportunity Commission v. Wyoming (1983). A few years later, the Court finally overruled National League of Cities as “unworkable” in Garcia v. San Antonio Metropolitan Transit Authority (1985). But the ghost of National League of Cities continued to hover over the justices’ work. In New York v. United States (1992), O’Connor wrote to prevent the federal government from “commandeering” state and local officials to enforce a federal statute on nuclear waste. Though she did not rely directly on National League of Cities or on the text of the 10th Amendment, which she conceded to be “essentially a tautology,” O’Connor’s reasoning paralleled that of the 1976 decision: She discovered an amorphous nontextual “policy” that was “confirmed” in the 10th Amendment — namely, the “federal structure” of the Constitution. Five years later, Scalia followed with an even broader decision in Printz v. United States (1997), striking down an obligation imposed by the federal Brady law requiring local law enforcement officials to assist in preventing illegal gun sales as unconstitutional “commandeering.” SHRINKING COMMERCE The 10th, 11th, and 14th amendments are all key to the federalism revolution, but the battle that has probably received the most attention has been fought over the commerce clause. The first strike against Congress’ power “to regulate Commerce” — a very difficult target given the history of the last century — was made in Lopez v. United States (1995). An opinion by Rehnquist nullified a federal law restricting the possession of guns near schools on the grounds that it had no substantial nexus with interstate commerce. The heavier blow, however, came in another Rehnquist opinion, United States v. Morrison (2000), which blocked Congress from using the commerce clause to reach noneconomic transactions regardless of their impact on interstate commerce. A year later, he wrote again for the Court in Solid Waste Agency of Northern Cork County v. U.S. Army Corps of Engineers (2001), to come to a restrictive interpretation of the Clean Water Act that was required to “avoid significant constitutional [i.e., commerce clause] questions.” Once, a broad commerce clause easily undergirded much of Congress’ work. Today, that work is threatened by a line of precedent firmly establishing a narrower reading. THE LEGACY IS SAFE Indeed, few of the rulings that make up the federalism revolution are likely to fall anytime soon. And the three more-recent decisions upholding federal power don’t undercut that. All three cases were relatively simple to decide and did not deviate much from the doctrines developed in the earlier cases. Both Nevada v. Hibbs and Tennessee v. Lane involved interests to which the Court has given special protection. Hibbs, which upheld the Family and Medical Leave Act under Congress’ Section 5 power, was a gender case. Both Rehnquist and O’Connor had indicated earlier that race and gender discrimination fell safely within Section 5′s coverage, and the chief justice had shown himself to be sympathetic on gender discrimination in the Virginia Military Institute case, United States v. Virginia (1996). Rehnquist himself wrote for the majority in Hibbs, joined by O’Connor. Lane, also a Section 5 case, was brought under Title II of the ADA to ensure that the disabled had access to courthouses, which the Court described as a “basic right” warranting scrutiny at least as rigorous as gender discrimination. It is not clear how much further Kennedy, who joined the four liberals, will go in enforcing the ADA against state authorities in other contexts. And despite the states’ rights argument, few observers had seriously expected the government to lose Gonzales v. Raich, which involved federal drug law enforcement. Both Kennedy and Scalia joined the majority. In other words, the federalism revolution is very much alive. The Court’s current federalism doctrines will likely be extended and expanded in the coming years — with or without Rehnquist. Judging by Bush’s own views and those of his appellate court nominees, O’Connor’s successor will probably be an even more consistently right-wing vote than she has been. We may soon be witnessing a truly radical constitutional revolution, and not just in federalism.
Herman Schwartz is a professor at American University Washington College of Law. His latest book, Right Wing Justice: The Conservative Campaign to Take Over the Courts, is published by Nation Books.

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