Federalism on the Bench
Will the Revival of Federalism Survive the War against Terrorism?

The war against terrorism, like other wars before it, will enhance respect for the national government and increase its growth. That prediction, and the corollary prediction of federalism's demise, unites everyone from Democratic activists to libertarians. And many observers argue that the Supreme Court--the only political institution that has taken federalism seriously over the past decade, as Robert F. Nagel observes in "The Implosion of American Federalism"--will not jettison its support for state and local governments.

But the truth is that September 11 has done little to undermine the Supreme Court's federalism agenda--the centerpiece of the Rehnquist Court's jurisprudence. It may even have strengthened the plausibility of its arguments. The question, now as before, is whether that's enough to ensure federalism's future.

Nagel locates federalism's "implosion" not in external events, such as wars, but in the dynamics of American democracy. "Federalism," in Nagel's robust sense, means an open, democratic, competitive politics that institutionalizes challenges to national authority. Such a federalism requires a distrust of central authority and a taste for self-government--and, along with these ornery sentiments, a certain moderation of egalitarian aspirations and a tolerance for openness and imperfection. To some extent, federalism also fosters these sentiments by teaching citizens that "obviously" beneficial laws, from waste-disposal requirements to child-care benefits, have costs as well as benefits (including the risk that industries and jobs will move to other jurisdictions).

Federalism and self-government, though, exist in tension with democratic sentiments for perfection, sameness, and equality, all of which require intervention by central government. Punting democratic choices to the national government obscures the trade-offs, since the costs are spread over a much larger number of losers who can no longer escape to other jurisdictions. Once this temptation has overwhelmed the adult sense of self-government and moderation, it will prevail more easily in the next case, and even more easily thereafter. That, says Nagel, is our predicament. He hopes that our political community has not yet become wholly nationalized. But he suspects that "we may already be past the point of no return, that the great moral, political, and cultural mass at the center is overwhelming weak institutions and practices at the periphery and is likely to become more overwhelming."

"The Implosion of American Federalism" rightly notes that the Supreme Court's federalism decisions over the past decade provide the only hope for federalism. In a subtle and compelling analysis of the leading cases, which makes up the bulk of his splendid book, Nagel shows, first, that the Supreme Court has not really reasserted federalism but rather "domesticated" it.

Nagel's fitting phrase means that the Court will protect a sphere of state autonomy but will cease to do so when state-level democracy threatens policy commitments that the Court perceives as central to national unity and cohesion. Romer v. Evans, invalidating Colorado's popular referendum banning local gay-rights ordinances, is an example; the Court's abortion-rights decisions are another. As Nagel shows, the majority opinions in those cases be-tray a near-hysterical fear of national disintegration.

Second, Nagel argues that "the fact that so many of the hopes and fears [over federalism] should be riveted on this supremely unlikely institution is itself a discouraging sign of implosion." An appeal to the Supreme Court is by definition an appeal to national authority. Federalism plaintiffs may mobilize arguments from democratic, local control, but they are appealing to the least democratic and most centralized of our institutions.

This is true, of course. And yet, the modern Supreme Court has also proven itself a remarkably reliable institutional critic of national power. In a little over a decade, the justices have invalidated more federal statutes on federalism grounds than their predecessors did over the course of two centuries. Nagel rightly laments that this solicitude for a more open, democratic politics does not extend to the Supreme Court's own impositions on state and local governments, especially in matters of sex, life, and death; in that sense, the Court's decisions reek of judicial supremacy rather than federalism. The decisions, though, also fit a more encouraging pattern: a campaign against the nationalist impositions of the nanny state.

Lacking the collectivist traditions of European countries, America in the 1960s and 1970s instead used the civil-rights revolution as a template to create an enormous array of entitlements for an ever-growing number of constituencies: women, children, the poor, the handicapped, labor, environmentalists. The driving engine of this ersatz socialism, and a source of federalism's erosion, is the judicial enforcement of federal entitlements against state and local governments. Under the leadership of the late Justice William Brennan, the Supreme Court eagerly enlisted in that cause, broadly interpreting federal statutory rights where they existed and making them up where they did not.

This body of law is the principal target of the Rehnquist Court's federalism. Through narrow statutory constructions, the expansion of state immunity against federal lawsuits and commandeering, and a re-limitation of the federal government's constitutionally enumerated powers, the Court has made it much more difficult for Congress to impose its interest-group schemes on state and local governments. The Rehnquist Court is only two or three decisions away from a wholesale reversal of the Brennan legacy.

The effects of September 11 will be felt, in subtle ways, in some future federalism cases. For example, the idea that federalism in an era of globalization warrants a larger foreign policy role for the states--pushed by some state governments and supported by a growing number of liberal and conservative academics--has suffered a serious setback. But the Supreme Court had largely rejected the pro-state position even before September 11 (in a case prohibiting Massachusetts's trade sanctions against Burma), and the question is in any event not central to the Court's broader federalism conception.

That conception will at its heart remain untouched by September 11, because the Supreme Court--in contrast to liberal and libertarian prognosticators of governmental growth--does not view "national power" as an indivisible blob. The Court deals with particular, discrete national powers and grants of authority, and the welfare-state-enhancing powers that it has limited are not the powers that the national government needs to fight a war. The congressional gratification of interest-group demands through federal causes of action is not an anti-terror strategy.

Past cases in fact suggest that the exercise of the national powers that the Court has restricted pulls Congress into matters that are neither national nor important, such as the creation of gun-free school zones or a federal remedy, purportedly enacted as a regulation of "interstate commerce," for gender-based acts of violence.

The Supreme Court may well extend these precedents. For example, in one of several cases concerning the Endangered Species Act now winding its way through lower courts, the justices may deny federal regulators the authority to protect beetles residing exclusively in three caves in Travis County, Texas. September 11 has actually made a federalist re-limitation of national power more compelling, not less so: Now that the cave-dwelling terrorists of Afghanistan have appeared on the national stage, the cave-crawlers of Travis County look more distinctly local--and more obviously distracting.

The obstacles to a more robust federalism after September 11 are the ones that Nagel identified before the event. The Supreme Court seems to have an obsessive fear of national disunity, especially concerning sexual mores, and it has shown an inability to build institutional, organized support for federalism. National unity seems, after September 11, not to require judicial edict. The signs of unity are the millions of American flags, which citizens would yet wave even if the Supreme Court were to allow them to govern themselves, in the various states, on abortion and gay rights.

More serious is federalism's lack of political resonance. Our national institutions are split between a ruthlessly nationalist Democratic party and a Republican party that sacrifices its strategic interest in a more open, federalist politics to poll-tested federal "reforms," from crime to education; between interest groups whose appetites can be satiated only in Washington and state governments whose idea of "federalism" is more federal funding with fewer strings. Without a rupture in these alignments, the Supreme Court's federalism, and ours, will remain feeble and domesticated.

The war against terror should remind us of the need to focus the national government on its constitutional obligations and to forsake local distractions, trivial pursuits, and interest-group concerns. So far, however, the sparring over such "anti-terror" measures as a union racket in "airport security" drag--together with a "stimulus" bill composed of special-interest handouts and an insurance bill with all the marks of another savings & loan debacle in the making--suggest a fundamental lack of seriousness and purpose. September 11 has not damaged federalism. The problem is that it may not have done enough to advance it.

Michael S. Greve, the John G. Searle scholar at the American Enterprise Institute, is the author of Real Federalism: Why It Matters, How It Could Happen.

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