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For most commentators, the big story in the wake of the Supreme Court’s recent federalism cases has been that a 5-4 majority of the Court seems committed to cutting back on congressional power in favor of the states whenever possible. That description is only partly accurate, and it isn’t the big story. For all the intensity of the dissenting opinions in cases restricting Congress’ power to regulate under the commerce clause, the test the majority is now applying is not one that need cause great concern for the future of congressional power to regulate — and regulate sweepingly — on issues of legitimate national concern. Much more troubling is the current majority’s efforts to restrict Congress’ power to enforce the equality and civil rights protected against state infringement by the 14th Amendment. There are generally four different lines of cases that may be characterized as federalism cases. The first two lines involve the scope of Congress’ affirmative authority under the Constitution: its power to regulate interstate commerce and to enforce the 14th Amendment. The other two lines reflect negative limitations on the exercise of Congress’ powers: the restrictions identified under the 10th Amendment on “commandeering” state officials to serve national goals, and 11th Amendment-based restrictions on Congress’ power to subject states to suits in federal courts. Most of the attention has focused on the first of these federalism-related doctrines, Congress’ commerce clause power. It was a change in the Court’s view of the sweep of that power, after all, that saved the New Deal and enabled the postwar expansion of federal authority. Many observers see the Court’s opinion this term in U.S. v. Morrison, striking down the private federal remedy against gender-based violence that Congress provided in the Violence Against Women Act (VAWA), as the most important of the federalism cases. These observers consider it a serious retreat from the deference the Court has traditionally accorded Congress since the New Deal. But there are two points of caution for those who would criticize the commerce clause analysis in Morrison. First, critics of Morrison should recognize that the Court in that case was obliged to balance two constitutional interests with arguably equal claims to legitimacy. On the one hand, the framers understood that Congress would have broad power to regulate, as John Marshall put it, “that commerce which affects more states than one.” At the same time, the framers assumed that there were matters of purely local concern that would be beyond Congress’ control. What the framers did not anticipate is the kind of technological progress and market interdependency that would eventually cause these categories to overlap to the degree they do today. The central commerce clause problem with VAWA was that if that statute was a constitutional exercise of the commerce power, then a federal Violence Against People Act would be, too. As the Court put it, quite fairly, “Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser impacts than the larger class of which it is a part.” And enactment of a general federal criminal code, the Court said, is one thing we all know the framers never imagined that Congress could do. LOCAL CONTROL VS. COMMERCE The Morrison Court struck the balance against congressional commerce power and in favor of local control over criminal-type conduct. The Court held that gender-based crime by itself — a purely noncommercial, intrastate activity — simply cannot have a substantial enough effect on interstate commerce to support the exercise of the commerce power. But in so doing, the Court did seem to leave room — admittedly in a somewhat grudging fashion — for Congress to regulate other noncommercial matters with more demonstrable effects on interstate commerce (perhaps if the area regulated is not so traditionally relegated to purely local control as criminal conduct — the protection of endangered species comes to mind). More important, the general idea of giving weight to the framers’ understanding that some matters would remain local does not seem to be illegitimate. The second point to recognize about Morrison is that it does not ultimately constrict much of Congress’ power to regulate matters of national concern. Other cases decided this term demonstrate the continued breadth and vitality of the commerce power, even under the Rehnquist Court. In Reno v. Condon, for example, the “states rights” Court dismissed the federalism claims of South Carolina without skipping a beat. At issue was whether the federal Driver’s Privacy Protection Act, which prohibits states from selling driver’s license information, is an unconstitutional infringement on state sovereignty. The threshold question in the case was whether the act is a permissible exercise of the commerce power. Applying the test articulated in the earlier U.S. v. Lopez without any difficulty, the Court unanimously held that vehicle license information in this context is an “article in commerce” and that “its sale or release into the interstate stream of business is sufficient to support congressional regulation.” The Court then swept to one side the state’s 10th Amendment arguments, holding that the act did not “commandeer” state officials into doing anything except to comply with a valid federal commerce clause regulation. The strength of Congress’ commerce clause power to trump state interests was also reaffirmed in the pre-emption cases this term, Geier v. American Honda Motor Co. and U.S. v. Locke. In those cases, the Court did not hesitate to let Congress displace the strong regulatory interests of states when the national commercial interest was at issue. And in Crosby v. National Foreign Trade Council, the Court reaffirmed an even broader power of Congress to regulate foreign commerce, even at the expense of an objecting state’s human rights policy. As for the larger constitutional balance discussed above, then, these cases demonstrate that even after Lopez and Morrison, Congress still retains expansive authority to regulate even matters the framers almost certainly would have considered to be of purely local concern. But that isn’t the case with respect to Congress’ power to enforce the 14th Amendment, as interpreted by the Court’s recent decisions. To the contrary, the Court is now taking away from Congress power that the amendment almost certainly does confer. But unlike the commerce clause jurisprudence, almost nobody is talking about it — including the commerce clause dissenters. 14TH AMENDMENT AND ‘MORRISON’ Morrison illustrates the point. In addition to the commerce power, Congress also invoked its 14th Amendment enforcement power as constitutional authority for creating a private federal remedy against perpetrators of gender-based violence. The Court was even more dismissive than it was of the commerce clause argument; the 14th Amendment, the Court explained, was directed solely at state action, so Congress’ power to enforce the amendment necessarily authorized only laws designed to remedy or deter unconstitutional state action. Because VAWA provided a federal remedy against private individuals, the Court held that VAWA’s federal remedy could not be defended as an enactment to enforce the 14th Amendment. Justice David H. Souter’s dissent made much of the commerce power issues, but it was silent on the Court’s treatment of the 14th Amendment issue. And Justice Stephen G. Breyer’s dissent raised only a few cryptic questions about the 14th Amendment holding. This virtual silence by the Morrison dissenters is surprising because the Court was more clearly mistaken in its 14th Amendment analysis than in its commerce clause holding. Under long-established court precedents, legislation enacted pursuant to Congress’ 14th Amendment enforcement power need only be “appropriate” to enforce the substantive rights conferred by the amendment. The Court’s holding in Morrison means, however, that Congress is excluded from enforcing the amendment by means of a private federal remedy, even if there is an admitted violation of the amendment by the state. Such categorical reasoning suggests that, just after the time of the adoption of the amendment, when many jurisdictions in the South had an obviously unconstitutional policy of refusing to enforce criminal laws when blacks were victims, Congress lacked authority under the amendment to extend to black victims a private federal right of recovery against the perpetrators of violence against them. But if a person suffers a cognizable 14th Amendment injury when a state refuses to prosecute a crime for race- or gender-based reasons, then it is hard to see why Congress could not permissibly consider a direct remedy against the perpetrator an appropriate way to enforce the right to be free from such injuries. Morrison‘s hostility to private federal remedies under the 14th Amendment is especially troubling because another case this term — Kimel v. Florida Board of Regents — makes clear that the Court also will not easily abide by the most obvious alternative: a direct suit against the state for its unconstitutional behavior. Kimel held that Congress exceeded its 14th Amendment power when it authorized private suits against states for violations of the Age Discrimination in Employment Act (ADEA). The key question should have been whether Congress had sufficiently established that states had engaged in a pattern of age discrimination that was arbitrary and irrational, and, thus, prohibited by the 14th Amendment. But neither opinion much bothered with that question. Instead, the majority simply dismissed the petitioner’s claim out of hand, with the observation that in earlier cases alleging unconstitutional age discrimination, the Court had applied only “rational basis” scrutiny and had held that the alleged acts at issue in the cases had at least a rational basis. The Court thus concluded that age discrimination is not unconstitutional, and that the ADEA therefore was an impermissible enactment to enforce the 14th Amendment. What the Kimel majority overlooked is that the Court’s own 14th Amendment jurisprudence has long made clear that rational-basis scrutiny is a creature of judicial deference to the superior fact-finding abilities of legislatures. The theory is that because courts are not well-situated to formulate policy, they generally should uphold legislative actions as long as they have at least some rational basis, absent some reason — i.e., the danger of invidious racial or gender bias — for heightened review. The best argument in defense of the ADEA as applied to the states is that Congress merely employed its own fact-finding tools and discovered that much age discrimination — which the Court had considered on its own, highly deferential review to be at least plausibly rational — was not in fact rational, but was based on invidious, indefensible stereotypes. The Court did not even try to come to terms with that argument but instead simply insisted that age discrimination by the states is rational because the Court itself had said so. Thus, the Court jurisdictionally excluded Congress from attacking such discrimination by federal legislation under the 14th Amendment. The rational basis review that developed as a result of judicial modesty vis-�-vis the democratic branches became inverted and transformed into a weapon of judicial supremacy over legislative will. Not that the dissenters noticed. Even more explicitly than in Morrison, the same four justices, dissenting in Kimel, refused even to join issue with the majority’s basic 14th Amendment analysis. They simply attacked the majority for even requiring Congress to show a 14th Amendment basis for private suits against states under the ADEA. As Morrison and Kimel show, the important federalism story is not the Rehnquist Court’s commerce clause jurisprudence, on which the dissenters have focused; it is the erosion of Congress’ power to enforce constitutional rights, which they have all but ignored. Walter Dellinger is a partner, and Jonathan Hacker an associate, in the Washington, D.C., office of O’Melveny & Myers. Dellinger is on leave from his position as Douglas B. Maggs Professor of Law at Duke University Law School.

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