Is States’ Rights/Preemption the New Lochnerism?
posted by Frank Pasquale
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?
December 18, 2007 at 8:07 am
Posted in: Constitutional Law
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Responses (2)
Stuart Buck - December 18, 2007 at 11:17 am
The “conservative” concept isn’t necessarily contradictory at all: Where the federal government has gone too far (i.e., in light of the Commerce Clause, the 10th and 11th Amendments, etc.), the states and the people should be freer to choose their own path. But where the federal government does act properly, the Supremacy Clause prevents states from undermining the federal approach. I’m not saying that real-life cases all fit this model perfectly, and I’m sure there are cases where Justices are arguably inconsistent with their own professed approach, but I think that would at least be the idea.
To make a silly analogy, it’s like having a dog that is allowed free rein within your property lines, but can go no farther. Someone could say, “Why are you so contradictory? On Monday, you urged the dog to run free [on your property], but on Tuesday you are yelling at the dog to come back [from the neighbor's yard]!”
Robert Ahdieh - December 18, 2007 at 3:43 pm
Two of my Emory colleagues have written a fair bit on this issue.
Robert Schapiro argues (among other places, in the Iowa and Northwestern law reviews, and in a forthcoming book entitled Polyphonic Federalism) that the two lines of cases can be reconciled, as emanations of the continued gravitation pull of “dual federalism” in the Court’s jurisprudence: a (problematic and perhaps futile, he argues) commitment by the Court, to the construction of clear boundaries between the realms of federal and state authority. When either government steps beyond these erstwhile bounds, the story goes, the Court steps in, to slap them down.
My colleague Bill Buzbee also explores this question in a forthcoming book entitled Preemption’s Choice: The Theory, Law & Reality of Federalism’s Core Question.
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