One of the hallmarks of the Rehnquist Court was the so-called “New Federalism.” In cases like New York v. United States, Printz v. United States, United States v. Lopez, and United States v. Morrison, the Supreme Court identified new limits on the power of the federal government. The driving aim of “New Federalism” on the Rehnquist Court was to shift the balance of power towards the states and away from the federal government. In many respects, this “New Federalism” movement ground to halt in Gonzales v. Raich when the Court–including Justices Scalia and Kennedy–indicated that it was not willing to continue pushing the envelope in reducing the power of the Federal Government.

The Roberts Court has taken a different approach to Federalism–call it Federalism 2.0. This federalism focuses on protecting certain structural features of our constitutional system, not to benefit states’ rights qua states’ rights, but rather to protect individual liberty as an end unto itself. In Bond v. United States, Justice Kennedy identified the two purposes of separation of powers (this passage was repeated by Chief Justice Roberts in Stern v. Marshall).

“Separation-of­ powers principles are intended, in part, [1] to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. [2] The structural principles secured by the separation of powers protect the individual as well.”

The former rationale is the reason behind “New Federalism.” The latter rationale is the reason behind Federalism 2.0.

In the words of Justice Kennedy in Bond v. United States–a unanimous case I discussed at some length here–federalism does not merely set the boundaries “between different institutions of government for their own integrity. ‘State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”

Here, we see that the focus is not simply on states’ rights, or sovereignty–really the bailiwick of the Rehnquist Court’s New Federalism–but the conception of enforcing structural limitations as a means to protect individual liberty. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Roberts, citing Bowsher v. Synar, noted that “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Liberty of the individual–not just the rights of the state.

Further, Federalism 2.0 does not merely delineate between the state and federal governments–it also creates an important distinction between the three branches of our tripartite system. In Stern v. Marshall, Chief Justice Roberts made clear that judges with lifetime tenure and guaranteed salaries–and not Article I judges–are the sole arbiters responsible for protecting individual rights. Citing Bond, the Chief noted, “Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges.” “Article III imposes some basic limitations that the other branches may not transgress.” And it is the role of Article III judges to enforce these limitations.

So what is the takeaway from this nascent Federalism 2.0? I think challenges to certain federal laws may have more success if the argument is framed in terms of federalism as protective of individual liberty, as opposed to merely challenging federal action as outside the bound of enumerated powers. As we saw in Comstock v. United States, an opinion joined by the Chief, and joined in judgment by Justices Alito and Kennedy, the Court is remiss to adopt a narrowed cabined view of the Necessary and Proper Clause, as well as the Commerce Clause.

While the relationship between liberty and enumerated powers is tight, focusing solely on enumerated powers or the necessary and proper clause is so 1995. This new Court requires a new argument–look to the liberty interests, as a corollary of federalism. “When government acts in excess of its lawfulpowers, that liberty is at stake.” Bond v. United States.

Think about reframing the argument in Raich. Why did the Court reach the conclusion it did? Because of the importance of the national federal interest in policing narcotics. Very little attention was paid to the tragic health and liberty interests of Angel Raich. The word “liberty” or “freedom” shockingly appears nowhere in either the majority, concurring, or dissenting opinions. For Angel, medicinal marijuana was her only refuge from intolerable pain, and represented a key element of her personal autonomy and human dignity. If the Court construed federalism here as a means to protect Angel’s individual liberty, rather than as a reflection on enumerated powers, perhaps the vote may have been different. Particularly for Justice Kennedy.

Additionally, this Roberts Court framework puts (perhaps intentionally) the liberal justices in a somewhat awkward position. They are generally in favor of construing federal powers broadly, but are also keen on protecting individual liberty interests (with the usual exception of Justice Breyer). Phrased in this manner, we have a convergence of federalist concerns and liberal concerns that could yield an interesting evolution in constitutional jurisprudence.

Going forward, if the argument is presented in terms of an “individual [who] has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States” and “can assert injury from governmental action taken in excess of the authority that federalism defines,” Bond v. United States, I think challengers may have more success.

Stay tuned for more on Federalism 2.0.

Cross-Posted at ConcurringOpinions.com

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