United States v. Lopez never presaged a huge rollback in national power: why is this?
As it tends to do when not in political control in Washington, the Left has rediscovered the power of state sovereignty. That doctrine is being used to resist the new administration’s federal immigration policy in a way that’s identical, in formalistic terms, to the Right’s tactics during the early days of the Obama administration—albeit in service of an opposite outcome.
Granted, when they held the White House and congressional majorities, those on the Left did their best to destroy the principle of state sovereignty as a check on federal power, but perhaps constitutionalists should let bygones be bygones. After all, the Right can hardly claim consistency on this score. Rather than revisit past disputes, constitutionalists should seize the moment of cross-ideological support for state sovereignty. We should enlist the Left in a mutual spirit of opportunism to revive the Supreme Court’s holding in the 41-year-old case of National League of Cities v. Usery.
Why? Because a robust Tenth Amendment is absolutely essential to preserving the Constitution’s establishment of a limited federal government. If this not-quite-dead decision were fully resuscitated, there would be no more powerful bulwark of the Tenth Amendment principles—and the Constitution.
Usery directly pitted federal against state power. Congress, removing an exemption for state employees under the federal Fair Labor Standards Act, presumed to regulate the wages, hours, and benefits of state employees. Under the FLSA, the federal government was essentially empowered to dictate the terms under which state governments hired their workers.
Of course, in practical effect, the power to determine the terms of employment is equivalent to the power to determine how states operate and whom states can hire. This amendment to FLSA thus effectively established the principle that Congress, under the Commerce Clause, could obliterate the operational reach of state sovereignty—obviously states can only exercise their sovereignty through the officials they employ. This was a rather radical notion even for the 1970s. Its negative implications for our “compound Republic,” to use James Madison’s phrase from Federalist 51, were readily apparent.
The defenders of the amendment nevertheless relied on the usual Commerce Clause plus Necessary and Proper Clause plus Supremacy Clause arguments. They claimed that the aggregate effects of state employment policies affected interstate commerce; thus, to regulate interstate commerce, the feds could regulate the states’ workforces; thus Congress had the power to override, under the Supremacy Clause, state employment policies that it disfavored.
This argument had been winning Supreme Court cases in the private sector ever since the 1942 case of Wickard v. Filburn, which uncorked the Commerce Clause power through the Necessary and Proper Clause to regulate wheat that was unsold, untransported, wholly intrastate grown, wholly intrastate consumed. Extending this argument to the public sector gave no one pause. Why not? Because state sovereignty had been taking body blows even before Wickard popped the lid on the Commerce Clause. In the 1941 case of United States v. Darby Lumber Co., the Court breezily declared that the Tenth Amendment was a “mere truism.” By which, the Court meant the Tenth Amendment meant nothing of legal significance.
Such were the spoils of FDR’s threat to pack the Supreme Court with his acolytes after the Court dealt his New Deal program a series of near-fatal blows in the 1930s.
But in Usery, the usual formula for enhancing federal power failed. The Court finally discovered the limits of straight-faced argumentation. Justice William Rehnquist wrote for the majority that Congress could not regulate states in their traditional functions that are “essential” to their “separate and independent existence.” The majority decided that federal powers could not displace core aspects of state sovereignty because the Tenth Amendment guaranteed the preservation of a system of dual sovereignty in which state sovereignty was meant to check and balance federal power.
The Usery majority declared unequivocally that if federal laws “directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Article 1, Section 8, Clause 3.” Accordingly, the Court ruled that a federal law violates principles of state sovereignty when it 1) regulates states as states, 2) concerns attributes of state sovereignty; and 3) directly impairs a state’s ability to restructure integral operations in areas of traditional government functions.
In short, the Usery Court recognized that the power to regulate state employment was effectively the power to destroy the state, which the Constitution simply did not allow. Score 1 for the Tenth Amendment. At that time (1976), it was the first real win for state sovereignty in decades.
Sadly, it didn’t take long for the Court to backtrack. Fewer than 10 years later, the Usery test was declared unworkable when one Justice Harry Blackmun abandoned that holding, writing on behalf of a new majority in Garcia v. San Antonio Metropolitan Transit Authority (1985). The new majority appeared to overrule Usery completely, declaring that the defense of state sovereignty must be mounted from within the political process at the federal level—in Congress—not within the court system.
The Usery decision, however, was not quite a dead letter. With the appointments of Antonin Scalia, Clarence Thomas and, yes, Anthony Kennedy, Usery would start feeling a lot better. Most famously, in New York v. United States (1992) and Printz v. United States (1997), the Court would prohibit Congress from “commandeering” states in the exercise of federal powers—and its prohibition on “commandeering” in these two decisions was not a stand-alone constitutional axiom.
In New York v. United States, the prohibition on commandeering was expressly made an extension of the first principle that the Constitution is designed to prevent the dangerous concentration of power in any one governmental branch to “reduce the risk of tyranny and abuse.” Printz v. United States specifically emphasized that “the power of the Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States.” As held in Printz, when a “Law . . . for carrying into Execution” the Commerce Clause violates the principle of state sovereignty, it is “merely [an] act of usurpation” which “deserves to be treated as such.” That rationale logically extended beyond the specific holdings in those two cases because a prohibition on federal commandeering is necessary, but not sufficient, for a meaningful division of power within our system of federalism.
As explained in Alden v. Maine (1999), the Supreme Court was now committed to enforcing the principle that
the States “form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.”
And it was committed to the principle that the federal power has no power to threaten the state’s existence as a state. As reaffirmed in Bond v. United States (2011), our system of dual sovereignty denies “any one government complete jurisdiction over all the concerns of public life.”
Under current precedent, federal courts routinely patrol the boundaries between state sovereignty and federal power without deferring to Congress. Such fully engaged judicial review has been further buttressed by decisions that have repeatedly applied heightened scrutiny even to federal actions that have invoked the Fourteenth Amendment’s Enforcement Clause to override state sovereignty (a clause that arguably does leave state sovereignty less secure).
The current legal regime under which courts enforce the Tenth Amendment is the correct one. It is entirely appropriate for judges to continue to review claims of federal power independently and without deference to Congress when the principle of state sovereignty is at stake. The judicial disengagement embraced by the Garcia majority in rejecting Usery cannot be reconciled with the fact that states as states have not been represented in the U.S. Congress since the ratification of the Seventeenth Amendment in 1913. Congress simply cannot be entrusted with exclusive authority to protect our system of dual sovereignty. Nor should it be entrusted with such power.
As passionately emphasized by Justice Powell in his dissent in Garcia:
The Framers believed that the separate sphere of sovereignty reserved to the States would ensure that the States would serve as an effective “counterpoise” to the power of the Federal Government. . . . [F]ederal overreaching under the Commerce Clause undermines the constitutionally mandated balance of power between the States and the Federal Government, a balance designed to protect our fundamental liberties.
Trusting the federal political process to protect state sovereignty is like trusting the fox to guard the henhouse. The principal claim of the Garcia holding—that Usery’s enforcement of the Tenth Amendment is unworkable—has been all but repudiated by the record laid down by the modern Court. The only thing missing from that record is an express recognition that Usery is very much alive. Now that the Left has stopped beating the Tenth Amendment to death, we should join forces in amici briefs and principled litigation to secure that recognition.