The Rehnquist Court and Symbolic Federalism:
In response to my first guest-post, Tom writes:
“I agree with Orin’s comment below that Raich on one level seems unremarkable. But I suppose that it has received enormous attention within constitutional law circles because of the continuing uncertainty about whether Lopez and Morrison repesented just outlying data points in the structure of the Constitution or instead a serious them[e] that would emerge and contradict much of the previous conventional wisdom about federal powers. It looks like today’s opinion pretty decisively answers that question in favor of the former.”
I agree. At the same time, I don’t think this opinion should come as a surprise. When was the last time that the pro-federalism side won in a major federalism case at the Supreme Court? As best I can recall, it’s been a long time; in the last few years, at least since Bush v. Gore, pro-federalism arguments have repeatedly lost.
More broadly, it seems to me that the theme of the Rehnquist Court’s federalism jurisprudence is Symbolic Federalism. If there is a federalism issue that doesn’t have a lot of practical importance, there’s a decent chance five votes exist for the pro-federalism side. Lopez is a good example. Lopez resulted in very little change in substantive law. Yes, the decision struck down a federal statute, but it indicated that Congress could quickly reenact the statute with a very slight change. Congress did exactly that: It re-passed the statute with the added interstate commerce element shortly after the Lopez decision. Lower courts have upheld the amended statute, and the Supreme Court has shown no interest in reviewing their rulings. Because nearly every gun has traveled in or affected interstate commerce, the federal law of possessing guns in school zones is essentially the same today as it was pre-Lopez.
As soon as the issue takes on practical importance, however, the votes generally aren’t there. If anything, the surprise today was that there were three votes for the pro-federalism side.
The Rehnquist Court and Symbolic Federalism:
In response to my earlier post, Tom Goldstein writes:
Comment by The Volokh Conspiracy — June 6, 2005 @ 2:21 pm
I like the “Symbolic Federalism” thesis (c.f. Seminole Tribe and Ex Parte Young) but what about Printz and the anti-commandeering cases? I guess those were symbolic by their very nature, but are they really of no practical significance?
Comment by Will Baude — June 6, 2005 @ 2:24 pm
I think the “Symbolic Federalism” thesis is about right…
And I think the structure of the New Federalism jurisprudence lends itself to that sort decisionmaking.
At bottom, the disputes get down to: what counts as economic activity?
In Morrison, the majority says “obviously, this isn’t economic activity.” Here, the majority says “obviously, this is economic activity.” The dissent says “obviously, it isn’t.”
Is there any non-arbitrary way to settle these disputes? Are they simply looking at it and making some naive, unprincipled (outcome-based) judgment on what counts as economic activity and what doesn’t?
Comment by Ted — June 6, 2005 @ 2:37 pm
From the view point of SCOTUS and Congress and the executive branch this had to be decided this way. This is part of their main meal tickets. Their primary rent receipts. Very few men, fewer organizations, and no really large organizations has ever had the …discipline? courage? trust?… to let go of this type power.
Letting a State have a completely internal item of any consequence can’t be allowed. This is arguably a good thing.
Comment by Huggy — June 6, 2005 @ 3:18 pm
I always thought of Board of Trustees v. Garrett as a major federalism case, and that was decided after Bush v. Gore. And I guarantee you that the states will win federalism cases in the future. (It wasn’t that long ago that people were surprised by the results in Hibbs and Lane.)
Comment by Sam — June 6, 2005 @ 3:24 pm
I think the most shocking thing about this case is that at least three Justices are/were willing to use Lopez/Morrison as something more than outlying cases, undercutting (if not overturning) some very venerable commerce clause jurisprudence. Probably four, as I believe Scalia’s “this doesn’t undermine Lopez/Morrison” concurrence in the judgment was probably written more to lay groundwork for expanding them in the future more than it was to voice his agreement with the majority.
I had always thought at most two Justices held this view. It really shocked me to see Rehnquist and O’C dissent here.
Comment by Sean — June 6, 2005 @ 4:33 pm
The Rehnquist Court and the Mathematics of Federalism:
Ernie Young’s post at SCOTUSBlog raises a good point: while commentators tend to refer to “the Court” as a single entity, the Supreme Court consists of nine peo…
Comment by The Volokh Conspiracy — June 6, 2005 @ 6:41 pm
Ashcroft v. Raich – The Supreme Court on Federalism
After trekking through the 9th Circuit, the long awaited decision in Ashcroft v. Raich is finally here. (Along with a concurrence and a dissent or two). Larry Solumn provides a good summary of the arguments here. As is usually the…
Comment by Calblog — June 6, 2005 @ 7:51 pm
I don’t buy the Court’s argument that the CSA provision banning simple possession of pot is an essential part of a larger regulation of the pot trade, given that a separate, unchallenged provision of the CSA already banned possession with intent to distribute. Moreover, as one of the attorneys for the prevailing respondent in U.S. v. Morrison (2000), I find that case indistinguishable, since the conduct regulated by that statute — gender violence — was also part of a larger class of activity that affects commerce (a rape in the workplace or rental housing is a hostile work or housing environment almost per se). Finally, it is deeply ironic that the Court was willing to defer to a respectable minority of the medical profession in finding that partial birth abortion was necessary, and thus protected, in Stenberg v. Carhart, yet was unwilling to defer to a respectable, and substantial, minority of the medical profession as to the usefulness of medical pot in the Raich case. Deference to medical judgments should surely be at least as great when they involve preserving life (as in Raich) as when they involve taking life (as in Carhart).
Comment by Hans Bader — June 7, 2005 @ 9:52 am
Eldred in Light of Raich
The Supreme Court delivered its decision in Gonzales v.
Comment by A Copyfighter's Musings — June 8, 2005 @ 2:13 am