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The Supreme Court’s recent decision in Brzonkala v. Morrison reflects the determination of a majority of the Court to limit federal power and, in their view, to restore the federal-state balance contemplated by the Framers of the Constitution. In fact, the Court’s recent cases do not (and should not) restore a vision of the federal-state balance that the Framers of the Constitution would recognize. They simply affect federalism at the margins by making it harder for persons to obtain protection under federal law and for Congress to address national problems. The battle over federal power takes place on two fronts — federal regulation of private behavior and federal regulation of the states themselves. Brzonkala is an example of the first. It dealt with a federal damage action filed by a woman against two football players she says raped her. Her claim was based on the 1994 Violence Against Women’s Act (VAWA), which Congress enacted after hearing overwhelming evidence that violent abuse of women is widespread and serious. Brzonkala argued, and four members of the Court agreed, that widespread gender-based violence, like race discrimination, has a substantial impact on the economy. The Court struck down the private remedy, however, on the grounds that violent attacks on women have no direct connection with commercial transactions and that the statute does not require the plaintiff to prove any particular effect on interstate commerce in an individual case. The majority’s analysis has a superficial appeal because it appears to link a neat formula about the reach of the Commerce Clause to a much grander principle about the historic relationship between the states and the federal government. In practice, however, the majority’s formula simply places an arbitrary limitation on the political process without doing anything significant about the federal-state relationship. Congress can re-enact this portion of VAWA by requiring that the plaintiff show a connection with commerce in a particular case. If they do, the practical effect of the Court’s opinion will be to make it harder for women to prevail by adding technical proof requirements that have little to do with the underlying conduct. They might have to prove, for example, that they were traveling across state lines when the attack occurred, that a telephone was used in connection with the attack, that they were intimidated from traveling to a place where commercial transactions take place (e.g., their job), and so on. No doubt there will be cases that meet these requirements, so it is worth re-enacting the statute. But what grand principle of federalism has been vindicated? A federal statute based on the Commerce Clause must have some connection with interstate commerce — the text of the Constitution requires it — but that test should almost always be met when Congress addresses a problem of national proportions. The real question is whether it makes sense to have a federal remedy for violent abuse of women. That is a political question for Congress, not a constitutional one for the Court. The recent decision involving the Age Discrimination in Employment Act, Kimel v. Florida Board of Regents, is an example of the second debate — federal regulation of the states themselves. In Kimel, a majority of the Court held Congress does not have the power under the Fourteenth Amendment to allow persons discriminated against on the basis of age by a state agency to sue for damages. Congress can re-enact this provision by using an alternative source of federal power, the Spending Clause, and by requiring states to agree to allow such suits as a condition of receiving federal funds. We can assume all states will agree to that condition, so Congress can achieve much of its original purpose. However, as a practical matter, some small state agencies will not receive federal funds and probably won’t be covered by the statute. So, there will be some arbitrary gaps in coverage, and some plaintiffs will not have a federal remedy. Again, no grand principle of federalism has been advanced. The decision has simply made a federal approach to a national problem less effective. The current majority’s view is a far removed, theoretical reflection of the intense fear of federal power that many of the Framers brought to Philadelphia, that the Southern states held through the Civil War and the civil rights movement, and that the Supreme Court itself clung to up until the New Deal. The core of this bitter, and sometimes violent, struggle is over — and the proponents of federal power won. What’s more, most people like the results — Social Security, Medicare, federal regulations that protect the environment, food safety and product safety, strong federal civil rights protections, federal subsidies for education, and on and on. None of the current Court’s decisions will effect this fundamental realignment. The Court’s recent federalism opinions contain at least two erroneous assumptions. First, they assume that federal regulation of private conduct inherently conflicts with state regulation. It almost never does, and when it does, there is a simple rule: The state policy gives way. Brzonkala was typical. There was no conflict between a federal and state remedy. Women could have both if it made sense. By and large, “cooperative federalism,” in the words of Professor Burt Neuborne of New York University School of Law, has replaced antagonistic federalism in most areas of the law. The core question is a political one. Should the federal and state governments both address a problem? Often, the answer is yes and the approach should be a cooperative one. Second, these opinions assume that, if Congress has the power to regulate states under the Commerce Clause, it could essentially regulate them out of existence by making their role meaningless. This fear of federal domination of the states rings hollow. Members of Congress, who come from the states and work closely with their state governments, depend entirely upon the people of the states for their political survival. Congress will never choose to turn states into meaningless political appendages. Congress regularly debates the federal-state balance, and positions tend to be driven by whether Members like federal or state policy in individual cases, not by a grand scheme to achieve federal domination. The Framers undoubtedly had a narrower concept of interstate commerce than the one that all of us, including every member of the Supreme Court, have today. But the outer boundaries of the Commerce Clause were never clearly established by the Framers, and in a modern economy it is difficult to identify manageable limitations that are not completely arbitrary. The meaningful limitation is the political process. The current majority’s position is not going to make any fundamental change in the federal-state balance. It will, upon occasion, impose unnecessary and irrelevant burdens of proof on persons relying on federal law such as Christy Brzonkala. And, in some cases, it will force Congress to adopt less effective solutions to national problems, such as state agencies firing people because they believe they are too old. In short, the majority’s crusade to restore the federal-state balance is not accomplishing much regardless of one’s views on federalism. Let’s hope it does not go much further. Edward Correia is Of Counsel at Latham & Watkins in Washington, D.C. He is a former Special Counsel to the President for Civil Rights in the Clinton Administration and a former Professor of Law at Northeastern University School of Law where he taught constitutional law.

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