Federalism, Contemporary Practice of

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The Supreme Court does not enforce constitutional federalism. Rather, it enforces sufferance federalism, that is, federalism as determined by Congress, a weak form of federalism in which state laws govern particular subjects only so far as Congress decides and in which Congresss controls such subjects as it sees fit. The Court also does not now recognize any significant distinction between taxing a state and taxing a private business; the former may be subjected to national taxes imposed by Congress in any circumstance applicable to the latter. And the Court interprets the spending power not as a limited power enabling the government to defray the expenses of its own operations and programs but as a power available to Congress to use to eliminate diversity among state laws according to its own choice. At the same time, the Supreme Court also deems Congress to possess power to restrict the means by which state or local governments might attempt to raise their own revenue for their own programs, without depending on appropriations from Congress. This renders each state dependent on such funds as Congress may see fit to budget, with such strings attached as Congress decides as a way to force changes in laws otherwise not subject to its control. In brief, in the aggregate of its federalism decisions the Court acts overall as an agency of the national government on federalism questions. "Judicially constrained dual federalism" does not accurately describe federalism in the United States. Rather, "sufferance federalism"—federalism to such extent as the national government decides to be appropriate—is the system virtually de jure in the United States.

Several examples of mere sufferance federalism have been provided in four recent decisions of the Supreme Court. Instructive on the point is South Dakota v. Dole (1987), which sustained an act of Congress that disapproved state statutes permitting any person over eighteen years of age to purchase beer. Congress desired that the minimum state drinking age should be raised to twenty-one. The means selected by Congress were efficient to this end. It reduced federally appropriated matching highway funds to any state in which the lawful minimum drinking age was lower than Congress desired the state legislature to enact and reduced these funds by such a fraction as Congress could be confident would be sufficiently harsh that no state could hold out against the penalty thus imposed.

The Court, over two dissents, rejected the view that the spending power is a power merely to meet the government's own operating budget as a national government (the view james madison had held). It also rejected the view that Congress's power was at most a power to set the conditions of a general or a specific program it would be willing to help fund (e.g., the construction of such highways as would be built to congressional specifications of design, quality, and materials). Rather in Dole the Court accepted the additional view that the spending power is available to Congress to use as an oblique power for the "indirect achievement of objects which Congress is not empowered to achieve directly." It is a power, in short, to require states to adopt the same substantive law on a given subject as their neighbors have, insofar as Congress sees fit, or be penalized under federal programs of assistance at such level of disadvantage Congress is confident will be sufficient to bring about the change it desires in their laws. As illustrated by the Dole case, the Court thus acts as an active department in federalism matters, that is, an enforcing department of the national government, validating Congress's preferences not merely in respect to its own laws but in respect to the content of state law as well. The three other major federalism decisions by the Court in the most recent five years (1985–1990) are of the same general hue.

In South Carolina v. Baker (1988), for example, the Court sustained an act of Congress eliminating the federal tax deductibility of interest income received on bearer bonds issued by state or local governments, bonds commonly used as a means of financing state or local operations. In sustaining this act, the Court overruled its own unanimous holding in pollock v. farmers ' loan trust (1895). Then, going beyond the facts of the case and the immediate legal question, Justice william j. brennan volunteered that Congress might also forbid states from attempting to raise revenue by issuing such bonds at all. In Justice Brennan's view, if Congress felt that such bonds would be a hindrance to its own collection of national taxes, it might outlaw their use by the states. To the objection that this would leave the states effectively subject to Congress ("sufferance federalism"), Justice Brennan was unfazed: "[S]tates must find their protection from congressional regulation through the national political process, not through judicially defined spheres of [respective national and state powers]."

In a related federalism development involving the eleventh amendment and state immunity from suits brought by private parties in federal court, a majority of the Court overruled still another unanimous and equally long-standing contrary decision. It held that Congress could subject states to money damage claims in federal courts without their consent or waiver of sovereign immunity despite the Eleventh Amendment, which as applied by the Court a full century earlier in Hans v. Louisiana (1890), was deemed by the Court to preclude such federal jurisdiction. In this third new case, Pennsylvania v. Union Gas Co. (1989) the Court thus reinterpreted the Constitution to favor congressional power once again.

The fourth case in the Court's recent quartet is of the same character. In garcia v. san antonio metropolitan transit authority (1985), the Court overruled its own decision that was then less than a decade old, holding that Congress may directly command the terms of state employment to the same extent it had presumed to regulate wages and hours in private employment. The case overruled was national league of cities v. usery (1976).

In large measure, however, these developments are not thematically new, despite the fact that three of the four constituitonal federalism cases involved such complete inconsistencies with the Supreme Court's own prior decisions as to require its previous interpretations of the Constitution to be set aside. Rather, the passing terms of the Supreme Court have but hardened what has been, overall, a one-way twentieth-century trend. Writing in 1950 in the Virginia Law Review, the distinguished constitutional historian edward s. corwin summarized the developments in "The Passing of Dual Federalism." His conclusions were accurate even for the time:

[T]he Federal System has shifted base in the direction of a consolidated national power.… [The] entire system of constitutional interpretation touching the Federal System is today in ruins. Today neither the State Police Power nor the concept of Federal Equilibrium is any "ingredient of national legislative power," whether as respects subject-matter to be governed, or the choice of objectives or of means for its exercise. [Today] "Cooperative Federalism" spells further aggrandizement of national power.… Resting as it does primarily on the superior fiscal resources of the National Government, Cooperative Federalism has been, to date, a short expression for a constantly increasing concentration of power at Washington in the instigation and supervision of local policies.

To be sure, even as implied in Corwin's article a half-century ago, the system of dual federalism was not originally expected to be administered by the Supreme Court in this one-sided fashion. Rather, in theory, it spoke to the Constitution's original differential apportionment of legislative powers (between the national and state governments) and a certain equilibrium in different spheres of respective national and constrained state powers that was meant to be held in place under the superintendence of the Supreme Court. The powers constitutionally apportioned were separated between limited—albeit important—powers under congressional control and the larger number left to the separate determination by legislature within each state. Subjects not believed to require a common regime of uniform national regulation—and thus not identified in Article I or elsewhere as subject to congressional disposition—were reserved from the national government to such differential treatment as the domestic law of each state might reflect. Madison characterized this basic arrangement in the federalist #45: "The 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."

The Supreme Court, while fully expected to grant full enforcement to acts of Congress within its enumerated powers ("few and defined"), was equally expected to withhold enforcement from any not within them. Indeed, it was the latter obligation of the courts that was particularly emphasized in the course of the ratification debates. In Pennsylvania, james wilson put the point reassuringly in the following terms: "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void." In The Federalist #78, alexander hamilton specifically adverted to the federalism-checking function of the courts: "If it be said that the legislative body [Congress] are themselves the constitutional judges of their own powers, … it may be answered that this cannot be the natural presumption, where it is not to be collected from any particular provision in the constitution.… It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." In the Virginia convention, john marshall took the same view: "If they [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void. "

Moreover, according to Marshall, a law that might nominally come within the limits of some enumerated power vested in Congress should—and would—be held void by the courts if it were discoverable that it was but a means to effectuate a control over a matter not entrusted to Congress, a matter reserved to the internal disposition of each state. On the very point of policing the equilibrium of federalism against abuse by congressional indirection in the exertion of its powers (as in South Dakota v. Dole), Marshall insisted in mcculloch v. maryland on the obligation of the judges to disallow the attempt: "[S]hould congress, under pretext of executing its powers, pass laws for the accomplishment of objects not trusted to the [national] government it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land." This is the same position Justice felix frankfurter repeated concretely, dissenting in United States v. Kahriger (1953): "[W]hen oblique use is made of the taxing power as to matters which substantively are not within the powers delegated to Congress [in this instance, whether gambling within a state ought or ought not be suppressed—a commonplace criminal law subject of state and local law and nowhere entrusted to Congress to decide], the Court cannot shut its eyes to what is obviously, because designedly, an attempt to control conduct which the Constitution left to the responsibility of the States, merely because Congress wrapped the legislation in the verbal cellophane of a revenue measure."

The constitutional checks felt to be desirable in respect to state laws not subject to congressional pleasure were in turn expressly (albeit quite narrowly) provided for principally in the special provisions of Article I, section 10 (forbidding state ex post facto laws or impairing the obligation of contract). Later, to be sure, between 1865 and 1870, these limitations were significantly enlarged in the Civil War amendments—in respect to which Congress is given strong powers of enforcement. However, subject to these limitations and such others as might be variously reflected internally in each state in keeping with its own constitution as interpreted by the states' own courts (rather than as the federal courts might want), it was the varietals of state law—not national law—that were meant to occupy the fields not given to Congress to command.

The main check against persistent immoderation of state law (for example, criminal law, family law, torts, local business regulation, trusts and estates) lay not in any possible preemption by Congress—it being understood that there was no such general power of preemption provided or vested in Congress by the Constitution. Instead, the main check that might keep the character of state laws from reaching extremes not forbidden by the constitution itself inhered in the porousness of state boundaries and the freedom of state citizens to move away from a state to a different state, taking their skills and personal property with them. Any persistent tendency toward immoderation in state legislation was thus constrained to the extent it was deemed constitutionally desirable to have it constrained—not by a supererogatory general authority in Congress, but by the consciousness of each state that it could not prevent its citizens from considering the comparative advantage of a different state or veto the free movement of persons and of personal property within the United States.

In contrast, modern federalism, or sufferance federalism, eliminates this alternative check on state laws, as it tends also to eliminate differences among the states themselves. Insofar as processes of democratic centralism (Congress) can impose uniform preemptive national legislation regardless of subject matter (as the Constitution is now construed by the Supreme Court to permit—largely via the commerce clause), such difference as any particular state law might provide as a contrast with that of some other state can be made of no consequence even within that state. Whatever the state law may permit to those within that state, it remains true that even all those moving to or residing in that state must reckon with the separate and enforceable prohibition Congress has already enacted and made applicable to them as a matter of federal law, a law fully enforceable via the federal courts. They must therefore conform to that law, rather than merely to the law of the state, regardless of where they reside. And insofar as Congress has been persuaded to regulate them in keeping with how others (though not including the state of their residence) may want them to be regulated by federal law, it will make no difference where they attempt to go. However, even more obtains under sufferance federalism than this. Because powers vested in Congress are interpreted to permit it to effectively determine the very content of state laws (as they are now so interpreted in general), then to the extent that interest groups and states with influence in Congress find themselves embarrassed or vexed by some distinction the internal laws of some few other states provide by way of contrast with themselves, they may act through Congress to compel the legislatures in every state to revise those states' own laws to conform to the preference already adopted in their states. Either way, then, such differences as may tend to exhibit themselves in certain laws of different states even today remain subject to congressional sufferance and elimination, if, as, and when Congress so decides.

It is the interpretive stance of the Supreme Court (e.g., on the scope of the power to "regulate commerce among the several states," equating it with a power to regulate or prohibit whatever may affect commerce, whether or not it is commerce that Congress cares about in the particular case) and not the literal abrogation of judicial review on the federalism question that is solely responsible for the change to sufferance federalism in the United States. The Court continues to be nominally willing to review substantive federalism, but it invariably sustains such preemptions of directions or commands that Congress presumes to enact as long as Congress goes through certain formal motions in the course of enacting its bills; however, it is not a refusal to hear or to entertain the case as such. This distinction might appear to be merely scholastic insofar as the practical results would appear to be the same as though the Court had abrogated judicial review of federalism cases. But it is more than scholastic precisely because the Court's current position does not leave the merits of the federalism objection unaddressed; rather, it denies the merits of those objections—that is, it decides the cases in which they arise. Accordingly, an amendment currently being pressed in thirty-three state legislatures (approved by fifteen legislatures, by one house in six others, and pending in twelve more) that, if proposed and ratified, would require the Court to address and decide the merits of federalism objections in cases otherwise appropriately raising such questions, would change nothing at all. Proposals of this sort proceed on a misunderstanding of judicial behavior on the Supreme Court. Sufferance federalism in the United States is not the result of the nonreviewability of federalism cases arising under the Constitution; rather, it is the result of the Supreme Court's own disposition to find that it is merely this form of federalism the Constitution of the United States provides.

William W. Van a lstyne


Corwin, Edward 1950 The Passing of Dual Federalism. University of Virginia Law Review 36:1–23.

Epstein, Richard 1989 The Proper Scope of the Commerce Clause. In Ellen Frankel Paul, ed., Liberty, Property, and Government. Albany: State University of New York Press.

Patterson, James 1969 The New Deal and the States: Federalism in Transition. Princeton, N.J.: Princeton University Press.

Stern, Robert 1973 The Commerce Clause Revisited—The Federalization of Intrastate Crime. Arizona Law Review 15: 271–285.

Van Alstyne, William 1985 The Second Death of Federalism. Michigan Law Review 83:1709–1733.

——1987 Federalism, Congress, the States and the Tenth Amendment: Adrift in the Cellophane Sea. Duke Law Journal 87:769–799.

——1989 Dual Sovereignty, Federalism and National Criminal Law: Modernist Constitutional Doctrine and the Nonrole of the Supreme Court. American Criminal Law Review 26:1740–1759.

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