The quixotic search for a judicially enforceable federalism

Minnesota Law Review

Volumn 83, Issue 4, 1999, Pages 849-925

  Moulton Jr , H Geoffrey ^a  

^a WIDENER UNIVERSITY   (United States)

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EID: 0347507136     PISSN: 00265535     EISSN: None     Source Type: Journal    
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References (430)

1. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), Justice Marshall stated that "the question respecting the extent of the powers actually granted [to the national government by the Constitution], is perpetually arising, and will probably continue to arise, as long as our system shall exist." Id. at 405. Writing to a European audience in 1888, Lord James Bryce observed: "All Americans have long been agreed that the only possible form of government for their country is a Federal one. . . . But regarding the nature of the Federal tie that ought to exist there have been keen and frequent controversies . . . ." 1 JAMES BRYCE, THE AMERICAN COMMONWEALTH 453 (1888). More recently, Justice O'Connor described "discerning the proper division of authority between the Federal Government and the States" as "perhaps our oldest question of constitutional law." New York v. United States, 505 U.S. 144, 149 (1992).
2. See, e.g., John C. Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997);
3. Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995).
4. 514 U.S. 549 (1995). Lopez, decided in 1995, marked the first time the Court had struck down a federal law as beyond the commerce power since 1936. See Charles Fried, Foreword: Revolutions?, 109 HARV. L. REV. 13, 15 (1995) (identifying Carter v. Carter Coal Co., 298 U.S. 238 (1936), as the last such ruling prior to Lopez).
5. 505 U.S. 144 (1992).
6. 521 U.S. 898 (1997).
7. See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
8. See JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-84 (1980);
9. Jesse H. Choper, The Scope of National Power Vis-à-Vis the States: The Dispensability of Judicial Review, 86 YALE L.J. 1552, 1560-77 (1977).
10. 469 U.S. 528 (1985).
11. For criticisms of Wechsler and particularly Choper, see, for example, MARTIN H. REDISH, THE CONSTITUTION As POLITICAL STRUCTURE 23-62 (1995);
12. Lewis B. Kaden, Politics, Money, and State Sovereignty: The Judicial Role, 79 COLUM. L. REV. 847 (1979);
13. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485 (1994);
14. William W. Van Alstyne, The Second Death of Federalism, 83 MICH. L. REV. 1709 (1985).
15. 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
16. See New York v. United States, 505 U.S. 144, 159 (1992) ("[T]he Supremacy Clause gives the Federal Government 'a decided advantage in th[e] delicate balance' the Constitution strikes between state and federal power.") (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
17. For a conceptually sophisticated discussion of the importance of (and techniques for) comparing institutions' relative capacities for different types of decisionmaking, see NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY (1994).
18. 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
19. 521 U.S. 898 (1997).
20. The Supreme Court's role in resolving confrontations between national and state power dates back to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). Until the last decade of the nineteenth century, the Court's Commerce Clause decisions did not address the authority of Congress to legislate because for the most part "Congress seldom perceived the necessity to exercise its power in circumstances where its authority would be called into question." United States v. Lopez, 514 U.S. 549, 569 (1995) (Kennedy, J., concurring). The Court instead "faced the related but quite distinct question of the authority of the States to regulate matters that would be within the commerce power had Congress chosen to act." Id.
21. 247 U.S. 251 (1918), overruled by United States v. Darby, 312 U.S. 100 (1941).
22. Id. at 273-74.
23. 156 U.S. 1 (1895) (holding that application of the Sherman Act to monopoly in manufacture of sugar would violate the Constitution by encroaching on state police power).
24. 295 U.S. 330 (1935) (striking down compulsory pension scheme for railroad workers as beyond Congress's power under the Commerce Clause). In Railroad Retirement Board, the government argued that railroad efficiency is a legitimate matter for Commerce Clause regulation, and that a guaranteed pension promotes morale and thus efficiency. In language that would be echoed sixty years later by Chief Justice Rehnquist in Lopez, Justice Roberts responded to this argument as follows: Provision for free medical attendance and nursing, for clothing, for food, for housing, for the education of children, and a hundred other matters, might with equal propriety be proposed as tending to relieve the employee of mental strain and worry. Can it fairly be said that the power of Congress to regulate interstate commerce extends to the prescription of any or all of these things? Is it not apparent that they are really and essentially related solely to the social welfare of the worker, and therefore remote from any regulation of commerce as such? We think the answer is plain. These matters obviously lie outside the orbit of Congressional power. 295 U.S. at 368.
25. 295 U.S. 495 (1935) (holding that the wages and hours of employees of a New York slaughterhouse and in-state sale of poultry were purely local matters not subject to regulation by the national government).
26. 298 U.S. 238 (1936). Carter Coal concerned the constitutionality of the Bituminous Coal Conservation Act of 1935, which taxed the sale of coal but granted a tax reduction to coal companies that agreed to wage and hour regulation for their workers. The Court held that the Act was not a tax but a penalty, and therefore outside Congress's taxing power. See id. at 288-89. In addition, the Court concluded that the Act was not supported by the Commerce Clause because mining, like manufacturing, was not interstate commerce. See id. at 302.
27. Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1, 16 (1950).
28. For a contemporary critical assessment of this abandonment of judicial review of federalism issues, see id. at 17.
29. 301 U.S. 1 (1937).
30. Id. at 37 (citation omitted).
31. 312 U.S. 100 (1941).
32. 247 U.S. 251 (1918).
33. The Court described the Tenth Amendment as but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. 312 U.S. at 124.
34. 317 U.S. 111 (1942).
35. See id. at 127-28 ("That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.").
36. The post-1937 doctrinal revolution reflected much more than a change in judicial attitudes about federalism. Not only did it occur in the wake of a political revolution that culminated in Roosevelt's court-packing plan, but it also reflected a deep philosophical shift: the rejection of laissez faire. The resulting increased deference to economic regulation applied not just to national regulation but to state and local regulation as well. See United States v. Lopez, 514 U.S. 549, 605-07 (1995) (Souter, J., dissenting) (discussing parallels between Commerce Clause and Due Process Clause jurisprudence relating to economic regulation).
37. 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
38. 521 U.S. 898 (1997).
39. 312 U.S. 100 (1941).
40. 392 U.S. 183 (1968), overruled by National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
41. Id. at 195.
42. 426 U.S. at 845. Justice Rehnquist's majority opinion in National League of Cities was foreshadowed by his earlier dissent in Fry v. United States, 421 U.S. 542 (1975). In Fry, the petitioners argued unsuccessfully that the Economic Stabilization Act of 1970, which authorized the President to regulate salaries and wages, was unconstitutional as applied to the states because it interfered with sovereign state functions. See id. at 547. While the Court rejected petitioners' claim, Justice Rehnquist contended that there must be a line between state and national power, and that the line might be drawn where federal legislation interferes with "traditional state functions." Id. at 558 (Rehnquist, J. dissenting).
43. See National League of Cities, 426 U.S. at 840-41, 849.
44. Id. at 854.
45. Id. at 852.
46. Id. at 845.
47. Id. at 847.
48. Justice Blackmun joined the majority opinion in National League of Cities, providing the crucial fifth vote. In a brief concurrence, however, he described himself as "not untroubled" by the case, 426 U.S. at 856 (Blackmun, J., concurring), thus portending his later decision to switch sides on the question of judicial enforcement of federalism.
49. See Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 11 (1988)
50. (describing National League of Cities as "a revolutionary opinion");
51. Frank I. Michelman, States' Rights and States' Roles: Permutations of "Sovereignty" in National League of Cities v. Usery, 86 YALE L.J. 1165, 1192-93 (1977) (describing the opinion as "outrageous," and as having "revolutionary potential"). But cf. Van Alstyne, supra note 9, at 1713 (describing National League of Cities as "only the most modest sort of federalism restraint on Congress").
52. 426 U.S. at 880 (Brennan, J., dissenting); see also id. at 858 (describing the decision as "patent usurpation of the role reserved for the political process").
53. Id. at 844.
54. 74 U.S. (7 Wall.) 700 (1869).
55. 426 U.S. at 844 (quoting Texas v. White, 74 U.S. at 725).
56. Id. at 844.
57. See D. Bruce La Pierre, Political Accountability in the National Political Process - The Alternative to Judicial Review of Federalism Issues, 80 NW. U. L. REV. 577, 589 (1985).
58. One interesting feature of National League of Cities is its almost passing reference to the Tenth Amendment. While the case is ordinarily treated as centering on the Tenth Amendment, see, e.g., Merritt, supra note 44, at 11, the majority opinion's only reference to the amendment is in the following passage: [O]ur federal system of government imposes definite limits upon the authority of Congress to regulate the activities of the States as States by means of the commerce power. In Fry [v. United States, 421 U.S. 542, 547 (1975)], the Court recognized that an express declaration of this limitation is found in the Tenth Amendment: While the Tenth Amendment has been characterized as a "truism," stating merely that "all is retained which has not been surrendered," it is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system. 426 U.S. at 842-43 (citations omitted).
59. See Merritt, supra note 44, at 11-12. For an extended discussion of lower court treatment of National League of Cities, see La Pierre, supra note 50, at 590-600.
60. See, e.g., Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264 (1981) (upholding national regulation of strip mining); FERC v. Mississippi, 456 U.S. 742 (1982) (upholding national energy policies that forced state agencies to consider nationally specified approaches to rate-making); EEOC v. Wyoming, 460 U.S. 226 (1983) (upholding application of federal age discrimination laws to state employees); see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.54 (1978) (stating that National League of Cities does not limit Congress's power to enforce the Civil War Amendments).
61. Lower courts had split on the question. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 530 & n.1 (1985).
62. See id. at 536.
63. For an account of Justice Blackmun's change of heart, of the decision to set Garcia over for reargument, and of the decision to overrule National League of Cities, see Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 VAND. L. REV. 1623 (1994).
64. 469 U.S. at 546-47.
65. Id. at 543.
66. Id. at 550-51. In particular, Justice Blackmun noted that the Constitution gave states control over voter qualifications and the electoral college and hence influence over the House of Representatives and the Presidency. See id. at 551. As for the Senate, the Constitution assures states direct influence by mandating equal representation. See id. In explaining that the national political process adequately protects states from the national government, Justice Blackmun relied heavily on the arguments made by Professor Herbert Wechsler in his 1954 article, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, see supra note 6. He also cited for support on this point Jesse Choper's Judicial Review and the National Political Process, see supra note 7, and D. Bruce La Pierre, The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the States As Agents of the Nation, 60 WASH. U. L.Q. 779 (1982). See Garcia, 469 U.S. at 551 n.11.
67. 469 U.S. at 551-52 (citing James Madison and James Wilson).
68. Id. at 556.
69. See id at 546.
70. Id. (citing New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).
71. Id.
72. Cf. id. at 567-68 n.13 (Powell, J., dissenting) ("The Court does not explain how leaving the States virtually at the mercy of the Federal Government, without recourse to judicial review, will enhance their opportunities to experiment and serve as 'laboratories.'").
73. Id. at 547.
74. Id. at 548 (quoting Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869)).
75. Id. at 550.
76. Id. at 554 (quoting EEOC v. Wyoming, 460 U.S. 226, 236 (1983)).
77. In the later case of South Carolina v. Baker, 485 U.S. 505 (1988), the Court described Garcia as having "left open the possibility that some extraordinary defects in the national political process might render congressional regulation of state activities invalid under the Tenth Amendment." Id. at 512 (emphasis added). As to what those extraordinary defects might be, the Court simply noted that "South Carolina has not even alleged that it was deprived of any right to participate in the national political process or that it was singled out in a way that left it politically isolated and powerless." Id. at 512-13 (citing United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)).
78. 469 U.S. at 556.
79. 301 U.S. 1 (1937).
80. 312 U.S. 100 (1941).
81. 317 U.S. 111 (1942).
82. 485 U.S. 505 (1988).
83. Id. at 512.
84. Justice Powell complained that "the Court's view of federalism appears to relegate the States to precisely the trivial role that opponents of the Constitution feared they would occupy," 469 U.S. at 575 (Powell, J., dissenting), and predicted that the Court's decision will "enable 'the National Government [to] devour the essentials of state sovereignty." Id. at 579 (quoting Maryland v. Wirtz, 392 U.S. 183, 205 (1968) (Douglas, J., dissenting)); see also id. at 572 (predicting "emasculation of the powers of the States"); id. at 577 ("The Court's action reflects a serious misunderstanding, if not an outright rejection, of the history of our country . . . ."). Justice O'Connor, with a noted lack of interbranch comity, warned: "With the abandonment of National League of Cities, all that stands between the remaining essentials of state sovereignty and Congress is the latter's underdeveloped capacity for self-restraint." Id. at 588 (O'Connor, J., dissenting).
85. See supra note 45 and accompanying text.
86. Justice Rehnquist, referring to the National League of Cities limit on congressional power, stated: "I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court." 469 U.S. at 580 (Rehnquist, J., dissenting). Justice O'Connor echoed that view, stating that "I would not shirk the duty acknowledged by National League of Cities and its progeny, and I share Justice Rehnquist's belief that this Court will again in time assume its constitutional responsibility." Id. at 589 (O'Connor, J., dissenting).
87. 501 U.S. 452 (1991); see infra Part II.B.
88. 505 U.S. 144 (1992).
89. 521 U.S. 898 (1997).
90. 501 U.S. 452 (1991).
91. 29 U.S.C. § 630(f) (1994).
92. Justice White, for example, agreed with the majority that the ADEA did not cover appointed state judges, but did so "based on simple statutory construction," 501 U.S. at 481 (White, J., concurring in part, dissenting in part, and concurring in the judgment), and only after rejecting the majority's clear statement rule. See id. at 474 (describing the rule as "unsupported by the decisions upon which the majority relies, contrary to our Tenth Amendment jurisprudence, and fundamentally unsound"). Justice Blackmun likewise relied on ordinary principles of statutory construction but reached the opposite result, concluding that appointed state judges are not "appointee[s] on the policymaking level" and therefore are protected by the ADEA. See id. at 481 (Blackmun, J., dissenting); see also William N. Eskridge, Jr., & Philip P. Frickey, Quasi-Constitutional Law: Clear Statement Rules As Constitutional Lawmaking, 45 VAND. L. REV. 593, 623-24 (1992) (suggesting that the case "should have been resolved through well-established canons and conventional statutory interpretive approaches").
93. The ADEA covers "individuals who are at least 40 years of age." 29 U.S.C. § 631(a).
94. Id. § 623(a).
95. Id. § 630(b)(2).
96. Id. § 630(f). As amended, § 630(f) provides in relevant part: The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.
97. The Missouri Constitution provides that "[a]ll judges other than municipal judges shall retire at the age of seventy years." MO. CONST. art. V, § 26.
98. The parallels between the prohibition on mandatory retirement in the ADEA and the wage and overtime provisions of the FLSA (considered in National League of Cities and Garcia) are obvious. Nonetheless, in EEOC v. Wyoming, 460 U.S. 226 (1983), which was decided after National League of Cities and before Garcia, the Court upheld the ADEA as applied to state game wardens involuntarily retired at age fifty-five under state law. After EEOC v. Wyoming and Garcia, the claim that application of the ADEA to state employees violated the Tenth Amendment appeared to be foreclosed.
99. 501 U.S. at 457.
100. See id. at 458.
101. Justice O'Connor cited Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484, 1491-1511 (1987), and Merritt, supra note 44, at 3-10. See Ashcroft, 501 U.S. at 458.
102. 501 U.S. at 460. The claim that setting the retirement age for judges is fundamental to state sovereignty is hardly self-evident, particularly given the far greater intrusion on the state judiciary permitted by Testa v. Katt, 330 U.S. 386 (1947) (holding that the national government may require state courts to enforce federal statutes).
103. 501 U.S. at 460.
104. See supra note 79 and accompanying text.
105. 501 U.S. at 460 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)).
106. Id. at 467 (emphasis added).
107. Id. at 460.
108. See Eskridge & Frickey, supra note 85, at 624.
109. 501 U.S. at 464.
110. See Yoo, supra note 2, at 1337-38.
111. 505 U.S. 144 (1992).
112. 521 U.S. 898 (1997).
113. 42 U.S.C. § 2021-2021b (1994).
114. 505 U.S. at 150.
115. See 42 U.S.C. § 2021e(d)(2).
116. See id. § 2021e(e)(2)(A).
117. See id. § 2021e(d)(2)(C).
118. 505 U.S. at 188.
119. Id. at 155. "At least as far back as Martin v. Hunter's Lessee [14 U.S. (1 Wheat.) 304 (1816)], the Court has resolved questions 'of great importance and delicacy' in determining whether particular sovereign powers have been granted by the Constitution to the Federal Government or have been retained by the States." Id. (emphasis added).
120. Id. at 149.
121. Id. at 155 (citations omitted).
122. Id. at 156.
123. United States v. Darby, 312 U.S. 100, 124 (1941), quoted in New York, 505 U.S. at 156.
124. See New York, 505 U.S. at 156-57: Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment. The Tenth Amendment likewise restrains the power of Congress, but this limit is not derived from the text of the Tenth Amendment itself, which . . . is essentially a tautology. Instead the Tenth Amendment confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States. The Tenth Amendment thus directs us to determine, as in this case, whether an incident of state sovereignty is protected by a limitation on an Article I power.
125. 247 U.S. 251 (1918), overruled in part by United States v. Darby, 312 U.S. 100 (1941).
126. 505 U.S. at 159.
127. For other critical assessments, see Martin H. Redish, Doing It with Mirrors: New York v. United States and Constitutional Limitations on Federal Power to Require State Legislation, 21 HASTINGS CONST. L.Q. 593 (1994).
128. Indeed, as Justice White spelled out in dissent, the statutory scheme grew out of a political process in which the states not only were involved but in fact were the prime architects. See New York, 505 U.S. at 189-94 (White, J., concurring in part and dissenting in part). At one point in its opinion, the Court did argue that commandeering diminishes the accountability of public officials, see id. at 168-69, but never linked that argument to the political process approach of Garcia.
129. 505 U.S. at 160.
130. Id. at 160.
131. Id. at 201-02 (White, J., concurring in part and dissenting in part). The Court failed to note an available political process justification for the distinction. In the case of a proposed law of general applicability, state interests gain a measure of protection from the lobbying efforts of private parties that may be subject to the same law. States get no such benefit in the case of laws that do not apply to private parties. For an elaboration of this argument, made before New York was decided, see La Pierre, supra note 50, at 648-51.
132. See New York, 505 U.S. at 166-68.
133. Id. at 166.
134. Id. at 168.
135. Id. at 161 (quoting Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 288 (1981)).
136. Id. at 175.
137. The Tenth Amendment provides: "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." U.S. CONST. amend. X. Justice O'Connor acknowledged that the Court's view that the Tenth Amendment "restrains the power of Congress . . . is not derived from the text of the Tenth Amendment itself, which, as we have discussed, is essentially a tautology." 505 U.S. at 156-57.
138. 452 U.S. 264 (1981).
139. 456 U.S. 742 (1982). For an extended examination of the New York Court's use of Hodel and FERC as precedent, see Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 U. KAN. L. REV. 493, 502-12 (1993).
140. The Hodel Court's reference to commandeering was part of its effort to demonstrate that the statute in question - the Surface Mining Act - did not regulate "States as States" and therefore did not meet the first of the National League of Cities requirements. See Hodel, 452 U.S. at 287. Read in context, the "commandeering" reference plainly did not establish a constitutional rule against commandeering: As the District Court itself acknowledged, the steep-slope provisions of the Surface Mining Act govern only the activities of coal mine operators who are private individuals and businesses. Moreover, the States are not compelled to enforce [those provisions], to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a state does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government. Thus, there can be no suggestion that the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. Id. at 288.
141. New York, 505 U.S. at 161.
142. FERC, 456 U.S. at 764.
143. Justice O'Connor accomplished this feat with a creative use of quotation that would have made a movie promoter proud. She quoted FERC as standing for the proposition that "this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations." 505 U.S. at 161 (quoting FERC, 456 U.S. at 761-62). The full sentence in FERC, the function of which was to disprove the concept that "the States and the Federal Government in all circumstances must be viewed as coequal sovereigns," 456 U.S. at 761, read as follows: While this Court never has sanctioned explicitly a federal command to the States to promulgate and enforce laws and regulations, there are instances where the Court has upheld federal statutory structures that in effect directed state decisionmakers to take or to refrain from taking certain actions. 456 U.S. at 761-62 (citation omitted). In support, the FERC Court then cited three cases that all cut against a no-commandeering rule: Fry v. United States, 421 U.S. 542 (1975), which upheld congressional authority to require state executives to abide by the wage and salary limitations established by the Economic Stabilization Act of 1970; Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 695 (1979), which acknowledged federal power to enforce a treaty by compelling a state agency to "prepare" certain rules "even if state law withholds . . . the power to do so"; and Testa v. Katt, 330 U.S. 386 (1947), which upheld the authority of the federal government to require state judiciaries to enforce federal law.
144. Even if FERC supported a no-commandeering rule, the Court's 1988 opinion in South Carolina v. Baker, 485 U.S. 505 (1988), observed that "[t]he extent to which the Tenth Amendment claim left open hi FERC survives Garcia or poses constitutional limitations independent of those discussed in Garcia is far from clear." Id. at 513.
145. See Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001 (1995) (rejecting the claim that originalist or formalist analysis supports the no-commandeering rule); Levy, supra note 132, at 517 (reviewing evidence of framers' intent and describing it as "far from conclusive");
146. H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA. L. REV. 633, 681 (1993) ("The autonomy of process principle O'Connor has articulated was not clearly chosen by the founders; indeed, there is some evidence that the Constitution's proponents expressly rejected the concept.");
147. Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957 (1993) (arguing that the framers intended to permit coercion of state executive and judicial officers, but not state legislatures); Yoo, supra note 2, at 1357-91 (concluding that the framers intended judicial review of the balance of power between state and local governments, but not addressing the precise contours of that review).
148. See New York, 505 U.S. at 163-66.
149. THE FEDERALIST No. 15, at 108-09 (Alexander Hamilton) (Clinton Rossiter ed., 1961), quoted in New York, 505 U.S. at 163.
150. For a thorough discussion of the relevant historical evidence, see Powell, supra note 138, at 659-64.
151. See THE FEDERALIST NO. 36, at 220 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ("The national legislature can make use of the system of each state within that State. The method of laying and collecting this species of taxes in each State can, in all its parts, be adopted and employed by the federal government."); THE FEDERALIST NO. 45, at 292 (James Madison) (Clinton Rossiter ed., 1961) (collection of federal taxes, if levied, "will generally be made by the officers, and according to the rules, appointed by the several States").
152. THE FEDERALIST NO. 27, at 176-77 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 140 (Jonathon Elliot ed., 2d ed. 1876) ("The [national] laws can, in general, be executed by the officers of the states. State courts and state officers will, for the most part, probably answer the purpose of Congress as well as any other.") (statement of William McClaine at North Carolina Ratifying Convention).
153. Justice O'Connor had addressed these statements in her separate opinion in FERC, arguing that they did not support commandeering but instead "seemed to assume that the States would consent to national use of their officials." 456 U.S. at 796 n.35 (O'Connor, J., concurring in part and dissenting in part). While the statements do not necessarily preclude Justice O'Connor's reading, nor do they provide any support for it. Saikrishna Prakash has argued persuasively that "[w]hen Madison and Hamilton discussed federal benefits of state commandeering, they contemplated a system in which the federal government has a 'right' to compel state officers to enforce federal law." Prakash, supra note 138, at 1999.
154. Powell, supra note 138, at 663.
155. New York, 505 U.S. at 168.
156. Id. at 168-69.
157. For an analysis of the formal and functional components of the Court's federalism jurisprudence, see Erwin Chemerinsky, Formalism and Functionalism in Federalism Analysis, 13 GA. ST. U. L. REV. 959 (1997).
158. 53 U.S. (12 How.) 299 (1851) (establishing that much of "interstate commerce" is subject to regulation by both state and national governments).
159. 505 U.S. at 169.
160. Justice O'Connor's opinion also referred to the accountability of state officials, see id. at 168 ("Where Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences; state officials remain accountable to the people."), but never explained how federal coercion diminishes the need of state officials to respond to their constituents. Moreover, to the extent that the accountability argument is an attempt to describe a political process failure within the meaning of Garcia, the political process at issue is federal, not state. See Levy, supra note 132, at 529-30.
161. Cf. Planned Parenthood v. Casey, 505 U.S. 833, 1000 (1992) (Scalia, J., dissenting) ("[T]he American people love democracy and the American people are not fools.").
162. 505 U.S. at 157 (citations omitted).
163. See id. at 187 (admitting that "[t]he result may appear 'formalistic'").
164. Id. at 181 (quoting Coleman v. Thompson, 501 U.S. 722, 759 (1991) (Blackmun, J., dissenting)).
165. Id. at 181-82 (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
166. For an analysis of the relationship between the no-commandeering rule and the practical benefits of federalism, see infra Part III.B.1.a.
167. 521 U.S. 898 (1997).
168. Id. at 933 (quoting New York, 505 U.S. at 188).
169. Pub. L. No. 103-159, §§ 101-106, 107 Stat. 1536-44 (1993) (codified at 18 U.S.C. §§ 921-925A (1994); 42 U.S.C. § 3759 (1994)).
170. See 18 U.S.C. § 922 note (creating National Instant Criminal Background Check System).
171. Id. § 922(s)(2). The Act defined "reasonable effort" to include "research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General." Id. The Act provided that if the prospective purchaser passed the background check, the CLEO would have to destroy all records relating to his or her research, including the information provided by the handgun dealer. See id. § 922(s)(6)(B)(i). If the prospective purchaser failed the background check, the Act did not require the CLEO to take any particular action (such as preventing the sale) other than to provide the would-be purchaser with a written explanation upon request. See id. § 922(s)(6)(C).
172. See id. § 922(s)(1)(D).
173. See id. § 922(s)(1)(C).
174. Id. § 922(s)(1)(F).
175. See Mack v. United States, 856 F. Supp. 1372, 1383-84 (D. Ariz. 1994), rev'd in part, 66 F.3d 1025 (9th Cir. 1995), rev'd sub nom. Printz v. United States, 521 U.S. 898 (1997); Printz v. United States, 854 F. Supp. 1503, 1519 (D. Mont. 1994), rev'd in part sub nom. Mack v. United States, 66 F.3d 1025 (9th Cir. 1995), rev'd, Printz v. United States, 521 U.S. 898 (1997).
176. Mack, 66 F.3d at 1031.
177. Printz, 521 U.S. at 905.
178. Id. In contrast to Printz, Justice O'Connor's opinion for the Court in New York relied heavily on the Tenth Amendment itself. While Justice O'Connor first described the amendment as nothing more than a "mirror image" of Congress's enumerated powers, she then went on to invest the amendment with independent constraining force. See supra notes 115-20 and accompanying text.
179. See Printz, 521 U.S. at 905-07.
180. Id. at 907.
181. See supra notes 140-43 and accompanying text.
182. See Printz, 521 U.S. at 910.
183. Id. at 910-11 (first and final emphasis added) (citing FERC v. Mississippi, 456 U.S. 742, 796 n.35 (1982) (O'Connor, J., concurring in part and dissenting in part)). Of particular note is Justice Scalia's extraordinarily strained parsing of The Federalist No. 27. See id. at 911. As Justice Souter ably explained in dissent, the "natural reading" of the relevant passage in No. 27 is that the national government will have the authority to incorporate state officials, who have taken an oath to uphold the Constitution and laws of the United States, into the service of the national government. See id. at 971 (Souter, J., dissenting).
184. Id. at 918 (emphasis added). That Printz effectively abandoned historical argument as support for the no-commandeering rule further reveals the weakness of the historical claims made for the rule in New York.
185. Id. at 918-19 (quoting THE FEDERALIST NO. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)).
186. See id. at 919-20.
187. See id. at 920 n.10.
188. See id. at 920-21.
189. Id. at 922.
190. See generally Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541 (1994).
191. 521 U.S. at 919 (quoting THE FEDERALIST NO. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)).
192. See id. at 955 (Stevens, J., dissenting) ("The fact that the Framers intended to preserve the sovereignty of the several States simply does not speak to the question whether individual state employees may be required to perform federal obligations . . . .").
193. In context, Madison's reference to inviolable sovereignty was as follows: "In this relation, then, the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects." THE FEDERALIST NO. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961).
194. Cf. Printz, 521 U.S. at 937 (Thomas, J., concurring) (suggesting that the commerce power "does not extend to the regulation of wholly intrastate, point-of-sale transactions").
195. See id. at 925.
196. New York v. United States, 505 U.S. 144, 188 (1992) (emphasis added), quoted in Printz, 521 U.S. at 926.
197. Of course, the reference to administering federal programs was arguably a throw-away in New York, the heart of which concerned national intrusion on state legislative functions.
198. See Printz, 521 U.S. at 927.
199. See id. at 928 ("Preservation of the States as independent and autonomous political entities is arguably less undermined by requiring them to make policy in certain fields than . . . by 'reduc[ing] [them] to puppets of a ventriloquist Congress.'") (quoting Brown v. EPA, 521 F.2d 827, 839 (9th Cir. 1975)).
200. See id. at 929-30.
201. Id. at 957 (Stevens, J., dissenting).
202. See id. at 931.
203. Id. at 935.
204. 514 U.S. 549 (1995).
205. See Fried, supra note 3, at 15 (identifying Carter v. Carter Coal Co., 298 U.S. 238 (1936), as the last case striking down a federal statute as beyond Commerce Clause authority prior to Lopez).
206. 18 U.S.C. § 922(q)(1) (1994).
207. The Act made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." Id. § 922(q)(1)(A). The term "school zone" is defined elsewhere as "in, or on the grounds of, a public, parochial or private school" or "within a distance of 1,000 feet from the grounds of a public, parochial or private school." Id. § 921(a)(25).
208. 514 U.S. at 551.
209. The opinion offered as first principles the unchallengeable and nondeterminative observations that the national government is one of limited, enumerated powers, see id. at 552 ("As James Madison wrote: '[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.'") (quoting THE FEDERALIST NO. 45, at 292-93 (James Madison) (Clinton Rossiter ed., 1961)), and that the "constitutionally mandated division of authority" between the national and state governments "was adopted by the Framers to ensure protection of our fundamental liberties,'" id. at 552 (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
210. See Lopez, 514 U.S. at 553 (despite broad definition of the commerce power in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), that case "acknowledged that limitations on the commerce power are inherent in the very language of the Commerce Clause"); id. at 556-57 (even modern precedents confirm that the commerce power is subject to "outer limits").
211. The only reference to Garcia in the majority opinion was in a citation to Maryland v. Wirtz noting that that case had been overruled on other grounds by National League of Cities, which in turn had been overruled by Garcia. See Lopez, 514 U.S. at 557-58.
212. 514 U.S. at 617 (Breyer, J., dissenting).
213. Id. at 556.
214. See id. at 557 ("Since [Jones & Laughlin Steel], the Court has . . . undertaken to decide whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce.").
215. 317 U.S. 111 (1942) (upholding federal commerce power to regulate wheat grown for home consumption because of aggregate effect of all such wheat on interstate commerce).
216. 379 U.S. 294 (1964) (upholding application of federal antidiscrimination legislation to "local" restaurant because it served food a substantial portion of which had moved in interstate commerce, and because discrimination discouraged travel).
217. 402 U.S. 146 (1971) (holding that Congress has power under Commerce Clause to regulate purely local loansharking because it belongs to a "class of activities" that affects interstate commerce).
218. See Lopez, 514 U.S. at 559-61, 566-67. The Court offered a second arguable doctrinal innovation - that Congress may regulate only activity that "substantially affect[s]" interstate commerce. Id. at 559 (emphasis added). While several commentators have read the substantial effect test as a meaningful change in course, it is better understood as merely "repackaging a test that [the Court] has recited in virtually every Commerce Clause case decided since 1937." Melvyn R. Durchslag, Will the Real
219. Alfonzo Lopez Please Stand Up: A Reply to Professor Nagel, 46 CASE W. RES. L. REV. 671, 672 (1996).
220. See Lopez, 514 U.S. at 559-61.
221. See Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554, 564 (1995).
222. 317 U.S. at 125 (emphasis added).
223. 247 U.S. 251 (1918) (striking down a federal statute regulating child labor because the statute regulated "manufacturing" and not "commerce"), overruled in part by United States v. Darby, 312 U.S. 100 (1941).
224. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (holding that Congress lacked authority to regulate activities that affect interstate commerce only "indirectly").
225. Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down statute prohibiting unfair labor practices in coal industry on ground that it regulated "mining" and "production," not "commerce").
226. Lopez, 514 U.S. at 565.
227. Wickard, 317 U.S. at 120.
228. Regan, supra note 211, at 564.
229. See Lopez, 514 U.S. at 602-03 (Stevens, J., dissenting).
230. See id. at 563-64 (summarizing government argument); id. at 615-31 (Breyer, J., dissenting).
231. See id. at 619.
232. See id. at 620-22.
233. See id. at 623-25.
234. Id. at 565.
235. Id.
236. Id. at 564.
237. To be sure, as Chief Justice Rehnquist's opinion carefully pointed out, each of the significant decisions beginning with NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), included language suggesting that congressional power is not unlimited and that the Court would intervene in an appropriate case. See Lopez, 514 U.S. at 556-58.
238. See, e.g., Van Alstyne, supra note 9, at 1722.
239. 514 U.S. at 552 (quoting Gregory v. Ashcroft, 501 U.S. 452, 458 (1991)).
240. See, e.g., Calabresi, supra note 2, at 752 (describing Lopez as a "revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers"); Linda Greenhouse, Focus on Federal Power, N.Y. TIMES, May 24, 1995, at A1 (stating that "it is only a slight exaggeration to say that . . . the Court [is] a single vote shy of reinstalling the Articles of Confederation" and that "[i]t is hard to overstate the importance of how close they came to something radically different from the modern understanding of the Constitution") (quoting Professor Laurence H. Tribe);
241. Timothy M. Phelps, Judicial Revolution: Recent Cases Reveal Slant Toward States, NEWSDAY, May 29, 1995, at A13 (discussing Lopez as evidence of a "revolutionary states-rights movement within the court");
242. cf. Mark Tushnet, Living in a Constitutional Moment?: Lopez and Constitutional Theory, 46 CASE W. RES. L. REV. 845, 869-75 (1995) (suggesting that Lopez may be part of a significant governmental transformation).
243. Louis H. Pollak, Foreword to Symposium: Reflections on United States v. Lopez, 94 MICH. L. REV. 533, 553 (1995);
244. see also Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643, 661 (1996) (arguing that those who see Lopez as harbinger of great change "are looking for the future in the wrong place").
245. See Lopez, 514 U.S. at 568, 583 (Kennedy, J., joined by O'Connor, J., concurring).
246. See id. at 596-601 (Thomas, J., concurring).
247. Cf. PHILIP BOBBIT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 192-94 (1982) (so describing earlier judicial assertions of power to strike down national legislation in the name of federalism). The Court has been busy with such federalism reminders in contexts other than the Commerce Clause and the Tenth Amendment. See City of Boerne v. Flores, 521 U.S. 507 (1997) (limiting the scope of Congress's enforcement powers under section 5 of the Fourteenth Amendment); Seminole Tribe v. Florida, 517 U.S. 44 (1996) (holding that Congress lacks authority under the Indian Commerce Clause to abrogate states' Eleventh Amendment immunity).
248. See, e.g., Lopez, 514 U.S. at 564 (warning that the government's justification of the Gun Free School Zones Act would justify an unlimited, "general federal police power," "even in areas such as criminal law enforcement or education where States historically have been sovereign"); New York v. United States, 505 U.S. 144, 162 (1992) (stressing importance of "the preservation of the States, and the maintenance of their governments'") (quoting Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1869)); id. at 163 ("'[N]either government may destroy the other'") (quoting Metcalf & Eddy v. Mitchell, 269 U.S. 514, 523 (1926)); id. at 188 ("States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government."); cf. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935) (describing the distinction between "direct" and "indirect" effects on commerce as "a fundamental one, essential to the maintenance of our constitutional system," because without it "there would be virtually no limit to the federal power and for all practical purposes we should have a completely centralized government").
249. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 588 (1985) (O'Connor, J., dissenting).
250. See Louise Weinberg, Fear and Federalism, 23 OHIO N.U. L. REV. 1295, 1313-14 (1997) (describing as "spurious" the "idea that if Congress had all the power it needed to govern the nation for the nation's general welfare, the states would cease to exist as states, and we would have a single consolidated country"); id. at 1295 ("Congress clearly is not going to dismantle the states.").
251. Kramer, supra note 9, at 1504; see also H. Geoffrey Moulton, Jr., Federalism and Choice of Law in the Regulation of Legal Ethics, 82 MINN. L. REV. 73, 126 (1997)
252. (noting that despite dramatic changes following the Civil War and the New Deal, "[f]ederal law remains . . . 'generally interstitial in its nature") (quoting PAUL M. BATOR ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 533-34 (3d ed. 1988)).
253. 505 U.S. at 157.
254. Id. at 159 (quoting Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)).
255. Id. at 160.
256. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 81 (1991).
257. While this observation is undoubtedly correct, it should not be overstated. Not only do states still do most of the governing in this country, but the dramatic increase in scope of the national government during this century has tracked a similar increase in the scope of state government. Cf. Weinberg, supra note 237, at 1316 ("[W]ith the passing of the Lochner era and the reign of Swift v. Tyson, the states obviously had more power than they had before the constitutional revolution of 1937.") (footnotes omitted); RONALD A. CASS ET AL., ADMINISTRATIVE LAW: CASES AND MATERIALS 4 (3d ed. 1998) ("While total federal employment has stabilized at about three million, state and local employment has climbed from three million in 1945 to eleven million in 1982.").
258. STEPHEN E. AMBROSE, UNDAUNTED COURAGE 52 (1996).
259. Id.
260. See id. at 53.
261. HENRY ADAMS, HISTORY OF THE UNITED STATES DURING THE ADMINISTRATIONS OF THOMAS JEFFERSON 52 (Library of America ed., 1986).
262. 22 U.S. (9 Wheat.) 1 (1824).
263. Id. at 197.
264. See id. ("The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are . . . the sole restraints on which they have relied, to secure them from its abuse.").
265. United States v. Lopez, 514 U.S. 549, 565 (1995) (citation to Justice Breyer's dissenting opinion omitted).
266. Of course the existence of authority does not render wise its exercise. There may be many good reasons to oppose significant national control of education. Many of those reasons are federalism-related, including the numerous advantages of local delivery of educational services.
267. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
268. PAUL DICKSON, BASEBALL'S GREATEST QUOTATIONS 44 (1991). While some version of this statement is frequently attributed to Berra, see, e.g., Claussen v. Aetna Casualty & Surety Co., 754 F. Supp. 1576, 1577 (S.D. Ga. 1990), Berra denies having said it.
269. See YOGI BERRA WITH TIM HORTON, YOGI: IT AIN'T OVER 20 (1997).
270. See supra notes 15-22 and accompanying text.
271. New York v. United States, 505 U.S. 144, 187 (1992). One might reasonably think that responding to "the era's perceived necessity" is precisely what legislatures are supposed to do.
272. See Richard A. Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1454-55 (1987).
273. See Lopez, 514 U.S. at 584 (Thomas, J., concurring).
274. See, e.g., Ann Althouse, Enforcing Federalism After United States v. Lopez, 38 ARIZ. L. REV. 793, 823 (1996) (arguing for a reconstruction of Commerce Clause jurisprudence that would "take[ ] into account the positive value of state and local government, the best uses of federal power, and the ideal allocation of cases between the state and federal courts"); Regan, supra note 211, at 555-59 (suggesting that exercise of federal authority ought to be upheld only upon demonstration of genuine national interest or state incompetence).
275. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550 (1985).
276. See id. at 551 n.11 (citing CHOPER, supra note 7; Wechsler, supra note 6; La Pierre, supra note 59).
277. 469 U.S. at 550-51.
278. Id. at 551 (citations to Constitution omitted).
279. See infra Part III.B.2.
280. 469 U.S. at 551.
281. Wechsler, supra note 6, at 559. Professor Choper, who unlike Wechsler openly advocated the nonjusticiability of federalism issues, did not seek support for his position in evidence of the framers' intent. He instead argued that such evidence was contradictory and unhelpful. See CHOPER, supra note 7, at 242.
282. See THE FEDERALIST NO. 26, at 172 (Alexander Hamilton) (Clinton Rossiter ed., 1961): [T]he State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only be the VOICE, but, if necessary, the ARM of their discontent. Larry Kramer describes this argument as control through "outside agitation," Kramer, supra note 9,
283. See Yoo, supra note 2, at 1357-91.
284. See Brutus V, N.Y.J., Dec. 13, 1787, reprinted in 1 DEBATE ON THE CONSTITUTION 500 (Bernard Bailyn ed., 1993) ("[I]t is obvious, that the legislature alone must judge what laws are proper and necessary for the purpose."); Brutus VI, N.Y.J., Dec. 27, 1787, reprinted in 1 DEBATE ON THE CONSTITUTION, supra, at 618 ("It will then be a matter of [public] opinion, what tends to the general welfare; and the Congress will be the only judges in the matter.").
285. THE FEDERALIST NO. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
286. Id.
287. See Yoo, supra note 2, at 1385-87. James Wilson, in his speech before the Pennsylvania ratifying convention, made one of the most direct statements demonstrating that judicial review of federalism issues was part of the original constitutional design. Wilson described judicial review, not the national political process, as the ultimate protection against national overreaching. [U]nder this constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department. . . . I had occasion, on a former day, to state that the power of the constitution was paramount to the power of the legislature, acting under that constitution. For it is possible that the legislature, when acting in that capacity, may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges - when they consider its principles, and find it to be incompatible with the superior power of the constitution, it is their duty to pronounce it void . . . . James Wilson, Remarks at Pennsylvania Ratifying Convention (Dec. 1, 1787), reprinted in 1 DEBATE ON THE CONSTITUTION, supra note 269, at 822-23; see also THE FEDERALIST NO. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961) ("[I]n controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government.").
288. See supra Part II.C-D.
289. See Yoo, supra note 2, at 1314 n.10.
290. See, e.g., Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring) ("Federalism was our Nation's own discovery.").
291. Kramer, supra note 9, at 1517; see also GEORGE W. CAREY, THE FEDERALIST: DESIGN FOR A CONSTITUTIONAL REPUBLIC 96-125 (1989) (describing the failure of The Federalist to offer a coherent explanation of federalism).
292. See Moulton, supra note 238, at 105-07 (cataloging claimed virtues of federalism and critics' responses).
293. 501 U.S. 452, 458 (1991) (bracketed numerals added).
294. See Kramer, supra note 9, at 1502 ("There are, after all, two sides to federalism: not just preserving state authority where appropriate, but also enabling the federal government to act where national action is desirable.").
295. Federalism's diversity-related benefits (and limits) are further elaborated in Moulton, supra note 238, at 125-42.
296. That federalism enhances individual preference satisfaction is captured in the following model: Assume that there are two states, A and B, with equal populations of 100 each. Assume further that eighty percent of the people in State A wish to permit contingent-fee arrangements in criminal cases, while only thirty percent of the people in State B wish to permit such arrangements. If the decision is made by the national government based on the preference of the majority, 110 people will be pleased, and ninety will be displeased. But if separate decisions are made by the majorities in each state, 150 people will be pleased, and just fifty will be displeased. Id. at 127. For similar models, see Gordon Tullock, Federalism: Problems of Scale, 6 PUB. CHOICE 19, 22 (1969), and McConnell, supra note 94, at 1494. Adding the mobility of citizens (and capital) to state-level decisionmaking furthers the preference-maximizing quality of federalism. In addition to voting rights, citizens have "exit rights" as a means of expressing their policy preferences. See ALBERT O. HIRSCHMAN, EXIT, VOICE AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES 106-19 (1970);
297. Akhil Reed Amar, Five Views of Federalism: "Converse-1983" in Context, 47 VAND. L. REV. 1229, 1237 (1994);
298. Richard A. Epstein, Exit Rights Under Federalism, 55 LAW & CONTEMP. PROBS. 147, 149 (1992). In the model above, for example, 20 citizens of State A and thirty citizens of State B were dissatisfied with the policy choices of their respective states. If some of those citizens were to vote again, this time with their feet, individual preference satisfaction would be further enhanced.
299. See, e.g., Letters from the Federal Farmer, in 2 THE COMPLETE ANTI-FEDERALIST 230 (Herbert J. Storing ed., 1981) ("[O]ne government and general legislation alone, never can extend equal benefits to all parts of the United States: Different laws, customs, and opinions exist in the different states, which by a uniform system of laws would be unreasonably invaded.");
300. Essays by the Impartial Examiner, in THE COMPLETE ANTI-FEDERALIST, supra, at 180 ("For being different societies, though blended together in legislation, and having as different interests; no uniform rule for the whole seems to be practicable.").
301. See, e.g., WALLACE E. OATES, FISCAL FEDERALISM 11-13 (1972);
302. VINCENT OSTRUM, THE MEANING OF AMERICAN FEDERALISM 126-32 (1991);
303. Jenna Bednar & William N. Eskridge, Jr., Steadying the Court's "Unsteady Path": A Theory of Judicial Enforcement of Federalism, 68 S. CAL. L. REV. 1447, 1467-70 (1995);
304. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956);
305. Tullock, supra note 281, at 21. On the distinctions, if any, between public choice theory and positive political theory, see Daniel A. Farber & Philip P. Frickey, Foreword to Symposium: Positive Political Theory in the Nineties, 80 GEO. L.J. 457, 458-63 (1992).
306. See Moulton, supra note 238, at 129-31 (discussing relevant research); see also DANIEL J. ELAZAR, THE AMERICAN MOSAIC: THE IMPACT OF SPACE, TIME, AND CULTURE ON AMERICAN POLITICS (1994) (detailing and categorizing American regional diversity).
307. See McConnell, supra note 94, at 1498 ("A consolidated national government has all the drawbacks of a monopoly: it stifles choice and lacks the goad of competition."); THOMAS R. DYE, AMERICAN FEDERALISM: COMPETITION AMONG GOVERNMENTS 14-15 (1990) ("[C]ompetition among governments, offering different types and levels of public goods at different costs, provides a rough market solution to the information problems confronting public officials.").
308. Michael McConnell expresses the point as follows: If a community can attract additional taxpayers, each citizen's share of the overhead costs of government is proportionately reduced. Since people are better able to move among states or communities than to emigrate from the United States, competition among governments for taxpayers will be far stronger at the state and local level than at the federal level. Since most people are taxpayers, this means that there is a powerful incentive for decentralized governments to make things better for most people. McConnell, supra note 94, at 1498-99.
309. Justice Brandeis described states as experimental laboratories in 1932. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."). That the framers did not tout interstate competition as one of the benefits of federalism is hardly surprising, given that such competition stems in large part from a ready mobility that was unknown and unanticipated at the end of the 18th century.
310. Edwin Rubin and Malcolm Feeley have argued that this and most of the other claimed benefits of federalism could be achieved as well through decentralization directed by a wise central authority. See Edwin L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994). While their arguments have significant force, the political independence of state and local officials requires a level of decentralization that a central authority would be otherwise free to ignore. Susan Rose-Ackerman has argued that local politicians in a federal system are more risk-averse than politicians in a unitary national government, and that federalism therefore impedes innovation.
311. See Susan Rose-Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. LEGAL STUD. 593 (1980). The difficulty with this claim is that, even assuming state politicians are more risk-averse than national politicians, "there will be more innovation in a decentralized system as a whole, because there are more actors and because individual constituencies will perceive risk and reward differently." McConnell, supra note 94, at 1498 n.58;
312. see also DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 85-86 (1995).
313. See SHAPIRO, supra note 288, at 55-56.
314. Richard Briffault put the latter point as follows: The value of state diversity . . . will frequently clash with the value of national uniformity. This has implications for both the economy and for our definitions of the rights of American citizens. In a mobile society and an increasingly integrated national economy, people, goods, services, and capital constantly are crossing state borders. Multiple and divergent state laws drive up the cost of doing business and the costs consumers pay for goods and services. Indeed, the existence of multiple law-making bodies may make it difficult for people and businesses to know what laws they are subject to and whether their conduct violates a particular state's rule. Richard Briffault, "What About the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1320 (1994).
315. See Moulton, supra note 238, at 136-41.
316. THE FEDERALIST NO. 22, at 144 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), provides an early example of "unneighborly" state regulation.
317. Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (citations omitted).
318. Id.
319. See, e.g., SHAPIRO, supra note 288, at 52-55; WILLIAM H. RIKER, FEDERALISM: ORIGIN, OPERATION, SIGNIFICANCE 142, 145 (1964);
320. Gary Jeffrey Jacobsohn, Contemporary Constitutional Theory, Federalism, and the Protection of Rights, in FEDERALISM AND RIGHTS 29, 43 (Ellis Katz & G. Alan Tarr eds., 1996) ("Where rights are involved, local communities have become the problem, not the solution.").
321. See Moulton, supra note 238, at 135 (providing examples). Any meaningful discussion of the Constitution's allocation of authority between states and nation must include reference to the impact of the Reconstruction Amendments. Conventional wisdom holds that Reconstruction worked "profound alterations in nation-state relationships." HAROLD M. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECONSTRUCTION ON THE CONSTITUTION 467 (1973);
322. see also JACOBUS TENBROEK, EQUAL UNDER LAW 239 (1965) (Fourteenth Amendment effected "a revolution in federalism"). Like much conventional wisdom, this observation is largely accurate. By nationalizing civil rights, and giving Congress enforcement power, the Reconstruction Amendments dramatically expanded the authority, and the potential role, of the national government. The significance of Reconstruction for federalism can be overstated, however. One might reasonably view the Thirteenth, Fourteenth and Fifteenth Amendments more as relatively narrow attempts to address particular (though particularly horrible) problems than as a considered effort to alter fundamentally the relative roles of states and nation across the range of government responsibility. It does not do, in other words, to respond to federalism claims by asserting that the Civil War changed all that.
323. See SHAPIRO, supra note 288, at 55-56.
324. See infra note 313 and accompanying text.
325. See generally PAUL E. PETERSON, THE PRICE OF FEDERALISM 17-39 (1995) (synthesizing relevant literature and describing relative advantages of federal, state and local government in the delivery of services).
326. Id. at 17.
327. This point is limited by the undeniable fact that many citizens are not adequately mobile, informed, or motivated to vote with their feet. See James M. Buchanan & Charles J. Goetz, Efficiency Limits of Fiscal Mobility: An Assessment of the Tiebout Model, 1 J. PUB. ECON. 25, 27-34 (1972) (discussing limits of efficiency analysis that assumes all individuals have unlimited mobility). Nevertheless, substantial evidence suggests that government policies have an impact on migration patterns and that even groups once thought geographically immobile, such as welfare recipients, are likely to move in response to state benefit levels. See PETERSON, supra note 299, at 30.
328. PETERSON, supra note 299, at 17.
329. See SHAPIRO, supra note 288, at 46; William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A Political Theory of American Federalism, 47 VAND. L. REV. 1355, 1364 (1994). The Supreme Court, by ruling that state newcomers must be given equal access to government services, Shapiro v. Thompson, 394 U.S. 618 (1969), substantially reduced the cost of moving to get access to more generous programs.
330. See PETERSON, supra note 299, at 19-20.
331. McConnell, supra note 94, at 1500 (footnote omitted).
332. See, e.g., PETERSON, supra note 299, at 25 ("Any program of pollution control will necessarily impose costs on particular neighborhoods and communities. If such decisions are left to local government, each will insist that the problem must be addressed but the solution should be located somewhere else.").
333. One inevitable consequence of local control of developmental services is disparity in the quality and extent of such services. When such disparity simply reflects the preferences of local citizens, it is a beneficent product of the federal system. But when such disparity is rather the product of disparities in fiscal capacity, it is arguably unfair and potentially destructive. So when wealthier communities "choose" to spend more on education than do poorer communities, for example, some sort of equalizing intervention by a higher level of government may be warranted.
334. See PETERSON, supra note 299, at 28.
335. That is not to say that federalism doctrine so fashioned would be legitimate, only that unlike current doctrine it would promote federalism's values.
336. See supra Part II.C.
337. New York v. United States, 505 U.S. 144, 166-69 (1992).
338. Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?, 95 COLUM. L. REV. 1001, 1075 (1995) (footnote omitted).
339. See Briffault, supra note 290, at 1323: The argument that federalism is necessary to secure freedom is, perhaps, a confusion of federalism with constitutionalism, that is, government that is subject to fundamental constraints. Federalism may serve to restrict government tyranny in polities which generally impose constitutional constraints - whether of a written or of an unwritten form - on their governments. But in that case, it is the constitutionalism, not federalism, that is doing the work of protecting freedom. Nations may be constitutionally federal but politically tyrannical, much as nations committed to constitutionalism are more likely to be free even if they lack a federal structure. The critical variable is constitutionalism, including the acceptance of limits on government power and protection of the legitimacy of political opposition, not federalism.
340. See supra Part II.C.
341. 505 U.S. at 188.
342. See Levy, supra note 132, at 524 (noting that "[e]xperience with administrative agencies (which occupy the same positions as would states if they implement federal policy) suggests that statutory provisions leave considerable discretion to those charged with their implementation").
343. See id. The background check program in Printz, by contrast, left the CLEOs with discretion only at the level of administrative detail. See Printz v. United States, 521 U.S. 898, 934 (1997).
344. United States v. Lopez, 514 U.S. 549, 552 (1995).
345. See id. at 565 (arguing that the logic of the dissent's argument "would be equally applicable, if not more so, to subjects such as family law and direct regulation of education"). Justice Rehnquist further criticized the dissent for suggesting that "'schools fall on the commercial side of the line.'" Id. (quoting id. at 629 (Breyer, J., dissenting)).
346. See, e.g., Regan, supra note 211, at 579-81.
347. See Weinberg, supra note 237, at 1332-34 (arguing that a centralized school curriculum is something to be afraid of).
348. 501 U.S. 452 (1991).
349. See supra Part II.B.
350. See Eskridge & Frickey, supra note 85, at 623-25.
351. See, e.g., Kramer, supra note 9, at 1503-14; DANIEL J. ELAZAR, AMERICAN FEDERALISM: A VIEW FROM THE STATES 185 (3d ed. 1984) (describing the structural protections discussed in text as "the least effective way" for states to influence national policy).
352. See U.S. CONST. art. I, § 2 (stating that voters selecting members of the House of Representatives "shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature").
353. Kramer, supra note 9, at 1507 (detailing constitutional and legislative limits on states' ability to set voter qualifications).
354. See id. at 1508-09.
355. U.S. CONST. art. I, § 3 ("The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . . .").
356. U.S. CONST. amend. XVII ("The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof . . . .").
357. Van Alstyne, supra note 9, at 1724 n.64.
358. For a thorough and powerful discussion of the contemporary irrelevance of states, see Rubin & Feeley, supra note 288.
359. See supra Part III.A.
360. See, e.g., Harry N. Scheiber, Federalism and the Constitution: The Original Understanding, in AMERICAN LAW AND THE CONSTITUTIONAL ORDER 85, 89 (Lawrence M. Friedman & Harry N. Scheiber eds., 1988) (noting that the framers left settlement of disputes between states and Congress as much to informal political process as to decisions by Supreme Court);
361. Samuel H. Beer, The Modernization of American Federalism, PUBLIUS, Spring 1973, at 49, 51 (federalism influences pattern of intergovernmental relations "[b]oth as a juristic device and as an element of political culture").
362. Martin Diamond, The Federalist on Federalism: "Neither a National nor a Federal Constitution, but a Composition of Both," 86 YALE L.J. 1273, 1283 (1977).
363. See, e.g., Althouse, supra note 259; Regan, supra note 211.
364. Althouse, supra note 259, at 817.
365. See, e.g., DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 5-6, 13-17 (1974);
366. Jonathan Macey, Public Choice: The Theory of the Firm and the Theory of Market Exchange, 74 CORNELL L. REV. 43, 53 (1988);
367. Sam Peltzman, Toward a More General Theory of Regulation, 19 J.L. & ECON. 211, 212-14 (1976);
368. George Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. & MGT. SCI. 3, 3-13 (1971).
369. Althouse, supra note 259, at 817.
370. See id. at 817-22.
371. Professor Althouse cautions that she is offering not "a definitive structure for Commerce Clause analysis, but . . . the beginning of an exploration into its meaning." Id. at 817.
372. 317 U.S. 111 (1942).
373. Althouse, supra note 259, at 818.
374. See id. at 820.
375. Id. at 818.
376. Regan, supra note 211, at 555.
377. Id. at 570 (quoting NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 REPORTED BY JAMES MADISON 298-304, 380 (W.W. Norton & Co. ed., 1966)).
378. See id. at 571.
379. See id. at 583-86.
380. See id. at 586-87.
381. Furthermore, the approach proposed by Professors Althouse and Regan, by demanding special justification for national legislation beyond a connection to interstate commerce, seems to reverse the usual presumption of constitutionality for economic legislation that has prevailed since 1937.
382. See Briffault, supra note 290, at 1350.
383. Id. at 1352.
384. See id. at 1350.
385. Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1212 (1977) (footnote omitted).
386. See, e.g., PAUL E. PETERSON, CITY LIMITS 170-71 (1981) (arguing that federal environmental standards are necessary for effective control of industry).
387. In theory, states could avoid the destructive race to the bottom by negotiating in their collective interest. See Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 17-19 (1960). "But the complexity of most problems of interjurisdictional spillover present insurmountable transaction costs to effective interstate bargaining." Moulton, supra note 238, at 141 n.332 (citing authorities).
388. See, e.g., Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992).
389. See, e.g., Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "To the Bottom"?, 48 HASTINGS L.J. 271 (1997);
390. Joshua D. Sarnoff, The Continuing Imperative (But Only from a National Perspective) for Federal Environmental Protection, 7 DUKE ENVTL. L. & POL'Y F. 225 (1997);
391. Peter Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 YALE L. & POL'Y REV. 67 (1996).
392. See, e.g., Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570 (1995).
393. See KOMESAR, supra note 12, at 5-7.
394. See Althouse, supra note 259, at 804.
395. See sources cited supra note 338.
396. Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 VA. L. REV. 265, 266 (1990).
397. Macey identifies three sets of circumstances in which Congress will defer to state regulation: (1) when a particular state has developed a body of regulation that comprises a valuable capital asset and federal regulation would dissipate the value of that asset; (2) when the political-support-maximizing outcome varies markedly from area to area due to the existence of spatial monopolies, variegated local political optima, and variations in voter preferences across regions; and (3) where Congress can avoid potentially damaging political opposition from special-interest groups by putting the responsibility for a particularly controversial issue on state and local governments. Id. at 268-69.
398. See 18 U.S.C. § 2119 (1994) (making the taking by violence of a motor vehicle involved in interstate commerce a federal crime punishable by up to 15 years in prison).
399. See Althouse, supra note 259, at 818.
400. See Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 36-44 (1991).
401. Id. at 43.
402. See, e.g., Edward L. Rubin, Beyond Public Choice: Comprehensive Rationality in the Writing and Reading of Statutes, 66 N.Y.U. L. REV. 1, 12-45 (1991);
403. Daniel A. Farber & Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 887-901 (1987).
404. See Macey, supra note 363, at 268.
405. See Elhauge, supra note 367, at 67-87 (demonstrating that the litigation process is subject to forms of interest-group influence that may be as distorting as such influence in the political process). The relative susceptibility of state and federal governments to interest-group capture is a matter of controversy, or at least uncertainty. Compare RICHARD A. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 173 (1985) (asserting that lower transaction costs of capturing states makes states more susceptible),
406. with RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 504 (A. James Casner et al. eds., 3d ed. 1986) (noting that the relative ease of exit for those harmed by capture makes states less susceptible).
407. See Elhauge, supra note 367, at 48-66.
408. See Briffault, supra note 290, at 1350.
409. Cf. Weinberg, supra note 237, at 1341 ("There is a danger, of which history affords enough examples, that on some wrong theory of federalism the Supreme Court will deny a needed power to Congress.").
410. 261 U.S. 525 (1923) (holding that District of Columbia law setting minimum wages for women violated substantive due process), overruled in part by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
411. See, e.g., Jonathan H. Adler, Comment, The Green Aspects of Printz: The Revival of Federalism and Its Implications for Environmental Law, 6 GEO. MASON L. REV. 573 (1998);
412. David A. Lineham, Note, Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL. 365 (1998); see also United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (invalidating Army Corp of Engineers' wetlands regulation as beyond scope of Clean Water Act, noting that Congress might lack commerce power to authorize such a regulation).
413. Not surprisingly, both Lopez and Printz have been used to challenge the constitutionality of a wide range of federal statutes. One example that has garnered significant attention is the Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (codified in scattered sections of 8, 18 & 42 U.S.C.). On March 5, 1999, the en bane Fourth Circuit held that the Act's creation of a private right of action for persons injured by "a crime of violence motivated by gender," 42 U.S.C. § 13981, exceeded Congress's power under the Commerce Clause and section 5 of the Fourteenth Amendment. Brzonkala v. Virginia Polytechnic Institute, No. 96-1814, 1999 WL 111891 (4th Cir. 1999). See generally David M. Fine, Note, The Violence Against Women Act of 1994: The Proper Federal Role in Policing Domestic Violence, 84 CORNELL L. REV. 252 (1998) (describing and criticizing the constitutional challenges).
414. See supra Part I; Erwin Chemerinsky, Federalism Not As Limits, but As Empowerment, 45 U. KAN. L. REV. 1219, 1221-25 (1997).
415. See Brief Amicus Curiae of the National Rifle Association of America in Support of Petitioners at 8-19, Printz v. United States, 521 U.S. 898 (1997).
416. See Chemerinsky, supra note 378, at 1240.
417. Kramer, supra note 9, at 1511.
418. See PETERSON, supra note 299, at 175-95.
419. Id. at 186.
420. See id. at 195.
421. As Richard Briffault points out, national programs better handled at the state level can pose problems beyond the relative lack of national competence. "By crowding state agendas with federal programs, and pressuring the states to commit their personnel, treasure, and authority to federal concerns, these measures can limit the capacity of the states to pursue their own state-initiated programs." Briffault, supra note 290, at 1352 (citation omitted).
422. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996).
423. Compare, e.g., Peter Edelman, The Worst Thing Bill Clinton Has Done, ATLANTIC MONTHLY, Mar. 1997, at 43, 49 (contending that under the statute states "can now do almost anything they want"),
424. with Candice Hoke, State Discretion Under New Federal Welfare Legislation: Illusion, Reality and a Federalism-Based Constitutional Challenge, 9 STAN. L. & POL'Y REV. 115 (1998) (arguing that the law constricts state discretion in critical areas by requiring adherence to conservative national goals).
425. See supra notes 302-05 and accompanying text.
426. See generally CONTRACT WITH AMERICA (Ed Gillespie & Bob Schellhas eds., 1994).
427. See Briffault, supra note 290, at 1350-53.
428. See, e.g., Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757 (1999);
429. Steven D. Clymer, Unequal Justice: The Federalization of Criminal Law, 70 S. CAL. L. REV. 643 (1997);
430. Tom Stacy & Kim Dayton, The Underfederalization of Crime, 6 CORNELL J.L. & PUB. POL'Y 247 (1997).