Is States’ Rights/Preemption the New Lochnerism?
In 2003, Columbia Law Professor Richard Briffault claimed that the Supreme Court’s work “displays an inconsistent interest in empowering the states.” Almost five years later, Simon Lazarus of National Senior Citizens Law Center has renewed that charge:
The principal vehicle for [a new judicial] activism has been a schizophrenic approach to policing the boundaries between state and federal power — venerated in judicial boilerplate as the “delicate balance” of federalism. On the one hand, the conservative bloc has sought to constrain Congress’ power to enact — and citizens’ ability to enforce in court — national legislation. On this side of their agenda, the justices have portrayed themselves as defenders of “states’ rights.”
On the other hand, without missing a beat, the Court simultaneously developed doctrines to “preempt” — that is to say, invalidate — state laws that conflict with or “frustrate” federal laws. Together, these mutually contradictory, vague, and elastic legal theories arm the Supreme Court . . . to act as the decisive arbiter of what is acceptable state and federal regulation.
Lazarus offers a wide-ranging preview of cases that could extend this trend in the 2007-2008 term. My question is: who’s made the best case on the other side? Can the federalism/preemption decisions be characterized as a coherent whole?