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Despite the high drama inherent in rulings that strike down socially conscious federal legislation, the U.S. Supreme Court’s latest round of federalism activity indicates that the court’s majority is still tinkering at the margins of a major constitutional shift. “Nothing this term is dramatic in itself, but it adds to the cumulative direction in which at least a five-person majority is going,” says constitutional law scholar Stephen Gardbaum, of the University of California at Los Angeles School of Law. “It’s sort of adding at the edges, clarifying some of the details.” But as the equally reliable four-person dissenters indicate, the court’s decisions aren’t exactly inconsequential. And four cases already slotted for review next term could well provide the key to whether the court remains at the margins or engages in a revolution that the dissenters warn would create a federal government not merely of limited but of actually enervated powers. At the top of the list is a challenge involving the government’s authority under the Constitution’s commerce clause to regulate intrastate waters that are potential habitats for migratory birds. The case, Solid Waste Agency v. U.S. Army Corps of Engineers, No. 99-1178, will build on this term’s key commerce clause case, in which the justices struck down a civil damages remedy in the federal Violence Against Women Act because it lacked a strong enough connection to interstate commerce. U.S. v. Morrison, nos. 99-5 and 99-29. The justices also will explore what it means to be a worker “engaged in foreign or interstate commerce” in the context of how the Federal Arbitration Act affects a job bias suit brought under state law in state court. And in two other strands of the high court’s federalism push — challenges under the 11th Amendment’s sovereign immunity provision and Sec. 5 of the 14th Amendment — the justices will decide whether Congress had the power to subject states to suits under the Americans With Disabilities Act. (This term, the court concluded that federal authority under Sec. 5 does not allow employees to sue state entities for age discrimination.) Finally, in an entirely new and potentially far-reaching front in the court’s recalibration of national power, the justices will examine how much authority Congress can delegate to a federal agency — in this case, the Environmental Protection Agency’s broad statutory authority to promulgate clean air standards “requisite to protect the public health.” NOT JUST STATES’ RIGHTS The justices on May 22 issued the final two of their five federalism-related challenges in the current term. Unlike last term’s federalism rulings — which used the 11th Amendment to bar private damages suits against states under federal patent, trademark and wage-and-hour laws — this term’s quintet involved all three active areas of the court’s federalism jurisprudence: the 11th Amendment, the commerce clause and Sec. 5 of the 14th Amendment. And they dispelled any remaining notion that the Rehnquist majority was simply interested in protecting “states’ rights.” “The issue, in short, is enumerated powers,” says Roger Pilon, vice president for legal affairs at the libertarian Cato Institute. “The point is, quite simply, the court is moving toward determining whether Congress or the executive branch has the power at issue, quite apart from whether that power may or may not trample on a state power.” If this were a court out solely to guard “states’ rights,” its 9-0 decision to uphold a federal law forbidding states from selling their drivers’ license data would have gone the other way, 5-4. Reno v. Condon, No. 98-1464. Instead, the court had little difficulty declaring that the statute was a legitimate expression of congressional power to regulate interstate commerce. Similarly, an activist states’-rights majority would not have restrained itself from using the 11th Amendment to block suits brought by individual whistleblowers charging state entities with defrauding the federal government or from striking a federal arson statute on the grounds that private residences are not interstate commerce. Instead, in both cases, the court stuck to a more mundane statutory approach. In the first case — Vermont Agency of Natural Resources v. U.S., No. 98-1828 — the court declared that the provision of the federal False Claims Act allowing whistleblowers to sue “any person” who defrauds the federal government was not meant to cover states. And in the second — Jones v. U.S., No. 99-5739 — the court unanimously concluded that the federal statute at issue, which made it a crime to burn any property “used in interstate commerce … or in any activity affecting interstate … commerce,” did not cover private residences because the function of such residences is not “use” in interstate commerce. And even in the court’s most important commerce clause case to date — the Violence Against Women Act decision in Morrison — Chief Justice William H. Rehnquist insisted that the prior court cases upholding the nation’s core federal civil-rights laws — all enacted under the commerce clause — remain viable. “Conservatives can read too much into these decisions — they don’t backtrack from decades of law. And liberals too easily cry Chicken Little [in this area], suggesting that the sky’s going to collapse,” says Ronald Rotunda, a professor at the University of Illinois School of Law who last year issued the third edition of his five-volume Treatise on Constitutional Law, co-authored with fellow Illinois professor, John Nowak. As a point of comparison, one court member is calling for a radical revision in the court’s commerce clause jurisprudence. In his Morrison concurrence, Justice Clarence Thomas reiterated his earlier call to eliminate one of the court’s three tests for whether a federal statute passes commerce clause muster. But it is worth noting, says Bruce Fein, a Reagan-era Justice Department official who now writes a column for the conservative Washington Times, that Thomas’ suggestion remains “a soliloquy. It isn’t even a duet yet.” ADVANCING THE BALL Even if the court is operating at the margins, it’s still operating, with ramifications for Congress — and the lower courts. And there is no denying that the court did advance the federalism ball regarding the commerce clause and Sec. 5 of the 14th Amendment. In Kimel v. Florida Board of Regents, nos. 98-791 and 98-796, a 5-4 court held that Congress lacked authority under Sec. 5 to apply the federal Age Discrimination in Employment Act to the states. The imposition of the act on the states, wrote Justice Sandra Day O’Connor, was “disproportionate to any unconstitutional conduct that conceivably could be targeted by the act.” The court’s ruling builds on its landmark decision in City of Boerne v. Flores, 521 U.S. 507 (1997), in which it struck down the Religious Freedom Restoration Act on the ground that it usurped the court’s role in defining the limits of constitutional rights. “In Boerne, the court said Congress can’t redefine rights, it can only enact remedial measures,” says Professor Larry Kramer, of New York University School of Law. “That decision wouldn’t matter so much as long as sufficient leeway is given to Congress in shaping remedies. But the court in Kimel is saying, ‘We’re going to reserve authority to say whether the means/ ends connection is good enough.’” Agreeing, Professor Douglas Kmiec, of Pepperdine University School of Law, adds, “We still don’t know the meaning of what is proportional. I see that as a question of deference to Congress. But it’s clear the conservative members do not. They’re going to place the court’s conception of constitutional rights against created statutory rights side-by-side. And to the extent the statutory right is more protective — as one could argue protection for the disabled under the [Americans With Disabilities Act] is — they will set one congressional statute aside after another on those grounds.” The Sec. 5 power, he says, has become “very, very tiny, and a backup role to the court’s own definition of constitutional claims.” The Morrison decision also answered a question that was raised by the court’s landmark decision in U.S. v. Lopez, 514 U.S. 549 (1995), when the court for the first time in 60 years invalidated a federal law — the Gun-Free School Zone Act — on commerce clause grounds. Lopez seemed to indicate that a federal law supported by careful congressional findings about the national economic aspect of the regulated activity — findings that the gun law lacked — would be constitutional. But in Morrison, the court said that the mountain of evidence Congress compiled, which found a nexus between violence against women and interstate commerce, was irrelevant because the underlying activity lacked any significant commercial element. That’s why the upcoming wetlands case is so important. Like violence against women, it involves activity that is fundamentally non-economic: the condition and existence of intrastate bodies of water. Also like the Violence Against Women Act, the wetlands law is supported on the ground that certain non-economic activity affects interstate commerce when aggregated. Specifically, the 7th U.S. Circuit Court of Appeals for the found that the destruction of the birds’ natural habitats, in the aggregate, substantially affects interstate commerce because many people spend billions of dollars on hunting, trapping and observing birds. “It’s one thing to say you’ve got a bench with a group of justices who share a kind of general predisposition on a big topic like federalism, and a whole other thing to say they have a coherent, thought-out plan as to what to do across that doctrinal area,” says Kramer. “They can be lumped together on that first level, but not on the specific doctrinal level.” Prof. Kmiec agrees: “There’s no question that the thing that unites them all is a constitutional vision that sees individual rights as better protected when power is divided between the federal and state governments. How that underlying constitutional theory gets elaborated in each of these separate contexts is where there’s still a bit of sketchiness.”

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