U.S. Supreme Court Review

U.S. Supreme Court Review--The New, Old Federalism


by Leonard M. Niehoff

In Federalist 45, Madison wrote:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State government are numerous and indefinite...[Indeed, the] powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

After decades of increasingly large, complex, and powerful federal government, the substance of Madison’s vision may seem as quaint and dated as the language expressing it. In the last few years, however, the United States Supreme Court has issued an important series of decisions embracing this vision of federalism, striking down broad exercises of Congressional power, and reaffirming the immunity of the individual states.

A Few Highlights

In 1995, for the first time in 59 years, the Supreme Court held that Congress had passed a law that exceeded its authority under the Commerce Clause. The Court did so in a remarkable context. It struck down the federal Gun-Free School Zones Act—a law that surely merits some sympathy—and thereby reversed the conviction of a high school student who brought a handgun to school—facts that surely merit no sympathy at all. See United States v Lopez, 514 US 549 (1995).

In 1996, the Court held that Congress cannot abrogate the Eleventh Amendment immunity afforded to the states except through a statute passed pursuant to § 5 of the Fourteenth Amendment. See Seminole Tribe v Florida, 517 US 44 (1996). This seemed to have little practical significance since earlier cases had suggested that Congress had broad powers under that provision. Then, in 1997, the Court imposed substantial limitations on the § 5 powers of Congress. In City of Boerne v Flores, 521 US 507 (1997), the Court held that those powers are limited to enforcing the substantive guarantees of the Fourteenth Amendment. Section 5 legislation must rest on specific findings of violations of the Fourteenth Amendment, and must respond proportionately to those findings.

In 1999, the Court issued three decisions that further confirmed and clarified the significance of Seminole Tribe and Flores. The Court expressly held that the standards of Flores must be applied in determining whether the attempt to abrogate immunity was made pursuant to § 5. See Florida Prepaid Post Secondary Education Expense Board v College Savings Bank, 119 S Ct 2199 (1999). The Court further held that the immunity principles applicable to federal law claims against the states in federal court also applied to federal law claims against the states in state court. See Alder v Maine, 119 S Ct 2240 (1999). Finally, the Court held that waivers of sovereign immunity must be express, and cannot be constructive or implied. See College Savings Bank v Florida Prepaid Post Secondary Education Expense Board, 119 S Ct 2220 (1999).

If anyone entertained any doubts about the implications of these immunity decisions, the Court lost no time putting them to rest. In January of this year, the Court decided Kimel v Florida Board of Regents, 2000 US Lexis 498 (2000). In Kimel, the Court held that, although the Age Discrimination in Employment Act (ADEA) contained a clear statement of Congress’ intent to abrogate the immunity of the states, that abrogation exceeded the authority of Congress under § 5 of the Fourteenth Amendment.

In the course of so ruling, the Court observed that the ADEA prohibits very little conduct likely to be held unconstitutional under current equal protection jurisprudence. Further, Congress had not identified any pattern of age discrimination by the states. Indeed, the Court found that:

[a] review of the ADEA’s legislative records as a whole...reveals that Congress had virtually no reason to believe that State and local governments were unconstitutionally discriminating against their employees on the basis of age.

Accordingly, the ADEA did not meet the requirements of Flores; there was no ‘‘congruence and proportionality’’ between the injury to be prevented or remedied and the means adopted to this end.

When William Rehnquist became Chief Justice, students of the Supreme Court believed that he would lead a ‘‘revolution’’ in the jurisprudence of individual constitutional rights. It was widely thought that an emerging conservative majority would undermine or reverse significant decisions of the Warren Court in areas such as abortion and freedom of speech. As James Simon recounts in a recent study of the Court, however, that conservative revolution did not materialize, and ‘‘the center holds.’’

It now appears that a revolution has indeed occurred, if at a more fundamental level than had been anticipated. The revolution has not occurred with respect to individual constitutional rights, but rather with respect to Congressional power, states’ rights, and federalism. This latest revolution returns to the debates of our first revolution, and engages the Constitution at its foundation, rather than at its emanations and penumbras. Perhaps we had forgotten that the word ‘‘revolution’’ has both these meanings: it can mean a change or upheaval; it can also mean the turning of events in a full cycle.


Leonard M. Niehoff

This column addresses proceedings before the United States Supreme Court that are of interest to Michigan Bar Journal readers. The column is written by Leonard M. Niehoff, who is a shareholder practicing out of the Ann Arbor office of Butzel Long. He has served as an adjunct faculty member at the University of Detroit@Mercy, and Wayne State University Law School.


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