Jun 30, 2011

Posted in Federalism 2.0, Uncategorized

Federalism 2.0 on the Roberts Court

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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  • With respect, I couldn’t disagree with you more. Sure, the Roberts court is open to what Orin Kerr calls symbolic federalism, So it struck down the accounting board and the non-article 3 court in Stern v. Marshall, and agreed to leave open the theroretical possibilty of challenging statutes as exceeding Congress’s enumerated powers. But come a real challenge to federal power (leave the uncertain status of health care out due to its politically loaded nature), e.g. civil commitment, and the court will find every starined way to make sure congress can pass every law it wants not banned by the first eight amendments, even in areas the framers deliberately left to the states (like police power see Federalist Paper #17 for the Federalphile Alexander Hamilton’s views on the subject- putting him as perhaps an even more states-rightest than Justice Thomas!). Take Comstock’s five factor test- CJ Roberts didn’t even join a narrowing concurrence. I’ll conclude with saying I’m quite confident that if Bond’s 10th amendment challenge ever gets to the Supreme Court on the merits, she won’t get 5 votes to overturn her federal conviction.

    • Josh Blackman

      You are right about Bond, Comstock,and I’ll throw in Raich–all criminal cases, with bad actors. I am working on another post about how the constitutionality of social cost plays into this dynamic.

      I think the issue of social costs plays (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1763830) in here, and makes the Courts less willing to step into the fray and apply heightened review and defend the liberty of bad people (putting aside for the moment that Raich really did nothing wrong). This explains the Chief’s vote in Comstock, and even Kennedy’s vote in Raich, without any narrowing concurring opinion.

      A case without a bad actor, in which the issue is purely about individual liberty in the context of Federalism 2.0 may yield a different result

  • After reading this post, I found myself reading Judge Sutton’s opinion in yesterdays Thomas More case, and I saw this:

    “Sixth, the anti-commandeering principle of the Tenth Amendment adds nothing new to this case. True, the Tenth Amendment reserves those powers not delegated to the National Government “to the States” and “to the people.” True also, a critical guarantee of individual liberty is structural and judicially enforceable—preserving a horizontal separation of powers among the branches of the National Government, INS v. Chadha, 462 U.S. 919, 957–58 (1983), and a vertical separation of powers between the National Government and the States, New York, 505 U.S. at 181. Odd though it may seem in light of American history, States’ rights sometimes are individual rights. See Bond v. United States, 564 U.S. __, No. 09-1227, slip op. at 9 (June 16, 2011). Doubt it? Go to any federal prison in the country to see how a broad conception of the commerce power has affected individual liberty through the passage of federal gun-possession and drug possession laws and sentencing mandates.

    “But to the extent plaintiffs mean to argue that the Tenth Amendment contains its own anti-commandeering principle applicable to individuals and to all of Congress’s enumerated powers, that is hard to square with the taxing power, which regularly commandeers individuals—in equally coercive ways—to spend money on things they may not need and to support policies they do not like. And to the extent plaintiffs mean to argue that such a principle captures (or reinstates) limitations on the meaning of “proper[ly]” “regulat[ing]” interstate “commerce,” that takes us back to the points already made about Congress’s delegated power in this area.”