S, State Sovereignty and States’ Rights
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
doctrines emphasize ambiguities in the Constitution’s distribution of national and state powers in order to oppose strong federal government. As political arguments they peaked between the Constitution’s ratification and the *Civil War. Although their ultimate claim—the right to secede—died at Appomattox, both doctrines maintain juridical vitality. They were shadows of their former selves from 1937 until the 1970s, when conservative Supreme Court justices began reinvigorating them, and have been strongly revitalized by the Rehnquist Court.
States’ rights doctrine’s main constitutional embodiment is the *Tenth Amendment. State sovereignty doctrine held that as a result of the American Revolution the Crown’s American sovereignty was transferred to individual states. The states could act much as independent nations except respecting powers vested exclusively in the federal government.
These doctrines were represented as a geometric metaphor—the “two separate spheres of dual sovereignty.” Each government was sovereign and hence supreme in its respective sphere. The metaphor aided two views of intergovernmental relations favorable to the states. The first was that the two spheres had mutually exclusive powers. If one sphere could regulate something, the other could not. The second was the concurrent powers view. If a state’s *“police power” and Congress’s Commerce Clause power legitimately reached the same object, each sphere could regulate though the results might be chaotic (see commerce power).
Two bold states’ rights and sovereignty assertions, *interposition and *nullification, were first advanced in the 1798 Virginia and 1799 Kentucky legislative resolutions drafted, respectively, by James *Madison and Thomas *Jefferson. These resolutions attempted to render inoperative in each state the 1798 Alien and Sedition Acts passed by anti–French Revolution Federalists. *Sedition Act prosecutions of Jeffersonian newspaper editors aided Jefferson’s 1800 defeat of incumbent president John Adams. Considering the acts unconstitutional, Jefferson refused to enforce convictions. The acts soon expired. The Supreme Court had no opportunity to rule on the constitutionality of either the acts or the Virginia and Kentucky resolutions’ chief assertions. These were Madison’s contention that where the federal government exceeded its powers the states “have the right and are in duty bound to interpose for arresting the progress of the evil,” and Jefferson’s proposition that “nullification … of all unauthorized acts … is the rightful remedy” (emphasis added).
Although also uninvolved in other major peaceably settled antebellum states’ rights crises (New England’s opposition to the 1812 War and South Carolina’s opposition to high tariffs in the 1830s), the Supreme Court nevertheless has played over the years an important role. Three broad questions have been adjudicated. First, how much do state sovereignty and states’ rights considerations limit federal judicial power to hear and determine *cases and controversies? Second, how much do similar considerations limit congressional powers? Third, how much do national government powers limit the rights of states to act?
Limits on federal judicial power have largely involved four more specific issues. One gave the Court little difficulty before the Civil War. Each state supreme court was assumed the final arbiter as to state legislation’s consonance with state constitution.
A second issue arose because English *common law had been “received” colony by colony. Was there also a *federal common law? If not, absent a congressional statute, an activity most would have thought punishable (e.g., murder in the District of Columbia) would not be. If *Article III’s extending federal judicial power to “all Cases … arising under … the Laws of the United States” included the common law among the “Laws,” many a common-law controversy involving a national question would be open to federal judicial inquiry. Arch-Federalists thought that fine. In 1812, United States v. *Hudson & Goodwin took the opposite, Jeffersonian, position. In 1842, however, *Swift v. Tyson created a “Federalist exception” by holding that the common law of the state where a contract was made between two states’ citizens would not necessarily govern. Rather, the Court would apply “general principles and doctrines of commercial jurisprudence.” *New Deal justices overruled Swift in *Erie Railroad Co. v. Tompkins (1938).
The most recurrently troublesome issue in states’ rights and sovereignty litigation arose because, becoming states, the thirteen colonies inherited the British sovereign’s immunity from suit. He, however, always granted to his subjects a petition of right to secure redress. Here was an irony of independence. Out with the bathwater of the monarch’s American power went the baby of the petition of right. What then did Article III’s list of cases and controversies over which the federal judiciary had jurisdiction mean by the phrase “Controversies … between a State and Citizens of another State”?
Could, as in *Chisholm v. Georgia (1793), a South Carolinian sue Georgia in federal court over a debt? Did Article III abrogate *sovereign immunity in a *“diversity jurisdiction” situation? So argued Attorney General Edmund Randolph, prominent at the Constitutional Convention and retained as Chisholm’s private counsel. All but (p. 970) one justice read the article literally and agreed. The upshots were irate Georgia legislators ordering the hanging of any federal official entering the state to enforce Chisholm, and the *Eleventh Amendment, which stated: “The Judicial Power of the United States shall not be construed to extend to any suit … commenced or prosecuted against one of the United States by Citizens of another State, or … of any Foreign State.”
Thus rebuffed, the justices could have been expected to treat the Eleventh Amendment gingerly. However, in 1821 Chief Justice John *Marshall (1801–1835) outraged states’ rights supporters by accepting jurisdiction over an appeal from Virginia’s conviction of a lottery ticket seller operating under a congressional licensing statute and hence claiming immunity from prosecution for violating Virginia’s prohibition of such sales. Though reading the congressional statute as not authorizing sales contravening state law, *Cohens v. Virginia (1821) held that the Eleventh Amendment barred federal jurisdiction only if the individual began proceedings. In 1824 *Osborn v. Bank of the United States pruned the amendment further. It declared a suit begun by an individual against Ohio’s state auditor not a suit against the state itself.
The Marshall Court resolved the fourth judicial powers and “dual sovereignties” issue in *Martin v. Hunter’s Lessee (1816). Virginia’s Court of Appeals, having interpreted post-Revolutionary treaties with Britain as not overriding wartime Virginia statutes confiscating Tory lands, denied that the U.S. Supreme Court had jurisdiction to reverse. Virginia Judge William Cabell’s opinion embodied the era’s “moderate” states’ rights position. Unlike Jefferson’s Kentucky Resolutions, Cabell claimed no unconditional state right to nullify federal laws or treaties. Instead, Cabell viewed dual sovereignty as turning control over the outcome on whether highest state court or U.S. Supreme Court first heard the case. “The constitution … regards the residuary sovereignty of the states, as not less inviolable, than the delegated sovereignty of the United States.” If Virginia’s judges heeded Supreme Court “instructions” overruling them, they would be acting as “State Judges” since they held no federal commissions. The U.S. Supreme Court would “bear … the relation of an appellate Court” to the Virginia Court. The word “appellate … includes the idea of superiority. But one Court cannot be … superior to another, unless both … belong to the same sovereignty. … The Courts of the United States … belonging to one sovereignty, cannot be appellate Courts in relation to the State Courts, which belong to a different sovereignty.” Section 25 of the *Judiciary Act of 1789 unconstitutionally “attempt[ed] … to make the State Courts Inferior Federal Courts.” The argument favoring the section turned jurisdiction erroneously on the “case,” not on the “tribunals” and “would give appellate jurisdiction, as well over the courts of … France.”
Justice Joseph *Story—whose expansive nationalism prompted the states’ rights jibe that he would claim federal admiralty jurisdiction over a corncob floating in a water pail—wrote for the Supreme Court because of Marshall’s financial interest in the lands. Story employed four main arguments to rebutt Cabell. The Constitution: (1) turned jurisdiction on the case, not the court; (2) was “crowded with provisions which restrain or annul the sovereignty of the states” (p. 343); (3) foresaw that “state jealousies ... might … obstruct justice” (p. 347), and hence provided that respecting “powers granted to the United States,” state judges “are not independent”; and (4) anticipated the “necessity of uniformity of decisions throughout the whole United States.” If “judges of equal learning … in different states … differently interpret, … laws … treaties and … constitution … might … never have precisely the same construction … in any two states.” The public mischief “would be truly deplorable; and it cannot be believed … the enlightened convention which formed the constitution” intended such mischief (p. 348). This argument is often thought Story’s strongest. But it did not logically demolish Cabell’s point that one could just as well suppose the framers had intended “foreseen controversies would sometimes arise” but had deliberately “provided no umpire … no tribunal by which they shall be settled … from the belief, that such a tribunal would produce evils greater than those of the occasional collisions … it would be designed to remedy.” The Supreme Court prevailed as a matter of political power.
Marshall’s Court rejected Eleventh Amendment arguments in ten of eleven cases raising them. The Court under Chief Justice Roger *Taney (1836–1864) did so in five of five. Occasionally that Court struck down state legislation on the dual sovereignty grounds of interfering with a federal instrumentality, but never vice versa. For example, using Marshall precedents—*McCulloch v. Maryland (1819) and *Weston v. Charleston (1829)—*Dobbins v. Erie County (1842) voided a $3.58 nondiscriminatory county tax on a U.S. revenue cutter captain’s post valued at $500.
In 1859 Taney ruled against Wisconsin judges who outdid the Martin judges. In *Ableman v. Booth Wisconsin high court judges, thinking the 1850 Fugitive Slave Act unconstitutional, issued *habeas corpus writs to free a Wisconsonian held as federal prisoner during federal prosecution for aiding a *fugitive slave’s escape. The literalism of Taney’s separate spheres trope aided a nationalist result: “the sphere of … the United States is as far (p. 971) beyond the reach of the judicial process issued by a … state court, as if the line of division was traced by landmarks and monuments visible to the eye” (p. 516). Of Supreme Court power, he said; “[N]o power is more clearly conferred by the Constitution … than the power … to decide ultimately and finally, all cases arising under the Constitution and laws” (p. 525).
However, confronted in 1861 with an Ohio governor’s refusal to extradite someone Kentucky sought for violating its fugitive slave statute, Taney dwelt on the Ohio governor’s moral duty to fulfill his Constitutional obligations but concluded in *Kentucky v. Dennison: “there is no power delegated to the general government ... to use … coercive means to compel him” (pp. 109–110).
Ableman remains law today. Dennison lasted 126 years. But in 1987, in Puerto Rico v. Branstad, Justice Thurgood *Marshall stated for the Court that Dennison’s “conception of the relation between the States and the Federal Government is fundamentally incompatible with more than a century of constitutional development … [T]he world of which it was a part has passed away. We conclude that it may stand no longer” (p. 230).
The Union’s Civil War victory and Abraham *Lincoln’s appointing the nation’s first Republican chief justice, Salmon *Chase (1864–1873), by no means ended dual sovereignty. *Texas v. White (1869) and the *Slaughterhouse Cases (1873) illustrate this well. Justice Samuel *Miller’s 5-to-4 majority Slaughterhouse opinion read the Civil War Amendments narrowly and in deft, if not convincing, fashion. But Chase’s Texas v. White opinion assumed what ought to have been proved, that correct was the abolitionist Republican theory about what happened to seceding states and their financial obligations. Its oft-quoted sonorous sentence—“The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States” (p. 725)—explains little and strictly speaking is false. Most Constitutional provisions “look” neither to, nor away from, either indestructibility or destructibility.
Two Chase opinions of the same term indicated the constitutional balance was not greatly altered against nonseceding states. In United States v. DeWitt (1869) Chase’s Court did what no antebellum Court had done—voided a congressional statute as intruding unconstitutionally into the “sphere” of state *police power. Today the intrusion—outlawing sale of dangerously inflammable lamplight oil igniting below 110 degrees—looks modest. Attorney General Ebenezer R. *Hoar’s Commerce Clause defense—that the law was permissible to protect employees of companies transporting the product interstate—seems unexceptionable. But in those pre-electricity days the law had important everyday-life effects. DeWitt makes much-critiqued turn-of-the-century cases limiting Congress’s *commerce powers (e.g., United States v. *E. C. Knight, Co., 1895) appear less discontinuous with their doctrinal past. DeWitt’s sticklishness about constitutional balance also renders more intelligible a set of “equal footing of newly admitted states” cases posing issues now remote, but hotly contested in the era of westward expansion. The set began with Pollard v. Hagan (1845; ruling that Alabama was entitled by 1819 admission to as favorable allocations as those of the original thirteen states respecting ownership of lands below navigable waters) and reached the Progressive era (e.g., *Coyle v. Smith, 1911; ruling that Congress could not condition Oklahoma’s admission on locating the state capital where Congress wanted).
“Dual government” pervaded Lane County v. Oregon (1869). Chief Justice Chase made explicit that: “In this court the construction given by the state courts to the laws of a State, relating to local affairs, is … received as the true construction” (p. 74). However, *Murdock v. Memphis (1875) broke with the past in a states’ rights direction. The Court twice heard arguments whether an 1867 congressional act’s omission of certain words in modifying the 1789 Judiciary Act expanded Supreme Court jurisdiction over appeals from state courts. The omitted 1789 words had limited the Court to scrutinizing “questions of validity or construction of … Constitution, treaties, statutes … in dispute … on the face of the record” (p. 617, emphasis added). Did the 1867 omission mean that, when a case came up on such ground, the Supreme Court was no longer restricted to questions on the record’s face but could look for other errors as well, including state law interpretations? Yes, argued retired Justice Benjamin *Curtis (author of the chief Dred *Scott dissent) from whom the perplexed Court sought ∗amicus advice. Chase died between the argument and the decision. His successor, moderate Republican Morrison *Waite (1874–1888), did not participate. As in Slaughterhouse, Samuel Miller carried a slim majority in rejecting the jurisdiction-expanding opportunity—one which, almost certainly, Marshall and Story would have grasped.
Between the Civil War and the New Deal the Supreme Court developed states’ rights along two other lines. First, beginning with *Collector v. Day (1871) it developed the mirror-image of antebellum rulings that states could not tax federal “instrumentalities.” Day, voiding federal taxation of state judges’ salaries, was the *tax-immunity converse of the Dobbins ruling regarding the federal cutter captain. By the 1930s this “reciprocal tax immunities” doctrine had blossomed wondrously. States could not levy sales taxes on gasoline used by federal vehicles (p. 972) (Panhandle Oil v. Mississippi, 1928). The federal government could not apply its sales tax to city police motorcycles (Indian Motorcycle Co. v. United States, 1931). In 1938, New Deal justices summarily uprooted the “reciprocal tax immunities” plant (Helvering v. Gerhardt).
Second, *sovereign immunity issues resurfaced because some “big spender” *Reconstruction governments profligately sold state bonds. Post-Reconstruction successors repudiated them. During the 1870s the Court continued the Marshallian enterprise of limiting the Eleventh Amendment but changed course in the 1880s. Despite holding that counties did not enjoy sovereign immunity (e.g., Lincoln County v. Luning, 1890), the Court rejected even the two strongest cases against states themselves. New Hampshire and New York tried to overcome southern Eleventh Amendment defenses against northern holders of defaulted Dixie bonds by authorizing the states’ attorneys general to receive assignments of bonds from resident bondholders, sue defaulting states in the names of New Hampshire and New York, and return any proceeds to the bondholders.
Marshall and Story would surely have read New Hampshire v. Louisiana and New York v. Louisiana as state v. state suits authorized by Article III. The 1883 Court majority, however, held: (1) that by ratifying the Constitution, states surrendered independent nations’ sovereign rights to sue another sovereign nation on behalf of their citizens; (2) that during the nine years between ratification of the Constitution (1789) and the Eleventh Amendment (1798), citizens had possessed such right as individuals; and (3) that the Eleventh Amendment had nullified such right of citizen without restoring the earlier right of the state. To top this off, in 1890 Hans v. Louisiana decided that, even if the Eleventh Amendment did not foreclose suit by a citizen against his own state, general principles of sovereign immunity did. So to conclude, the Court had to dismiss as dictum one of Marshall’s Cohen arguments—the Eleventh Amendment had not in such a case displaced Article III’s grant of federal judicial power “to all cases arising under the constitution … without respect to parties” whereas the Article III grant had displaced states’ sovereign immunity from suit by their own citizens. Said the 1890 Court, although “highest demands of natural and political law” require a state “to hold inviolate … public obligations,” federal interference with state failure to observe “this rule … would be attended with greater evils than such failure can cause” (p. 21).
In 1908, however, probusiness justices fashioned a Marshallian exception in Ex parte *Young. To strengthen the Minnesota Railway Commission’s rate-reducing powers, the state legislature enacted heavy day-by-day penalties for violations. Asserting that challenging rates in the usual manner (ignoring them and awaiting state prosecution) would be ruinous, railroads sought a federal *injunction barring Minnesota’s attorney general from enforcing the rates. Agreeing, the Court created a legal fiction for vindicating federal constitutional rights. If the law was unconstitutional, the state was not acting. The state official was (mis)using the state’s name to enforce a legal nullity. Sovereign immunity was irrelevant.
The fortunes of states’ rights and state sovereignty reached bottom during the middle of the twentieth century, casualties of two factors. One was Roosevelt-era justices’ conviction that modern society and economy required strong national government. A 1941 comment by Justice Harlan *Stone expressed the attitude well. Ruling the Fair Labor Standards Act constitutional in United States v. *Darby Lumber Company, Stone observed that the Tenth Amendment “states but a truism that all is retained which has not been surrendered” (p. 124).
The other factor was that midcentury white supremacist use of states’ rights arguments in resisting desegregation rendered the doctrine morally suspect. To force compliance, the justices limited it more than they otherwise likely would have. *Heart of Atlanta Motel v. United States (1964), *Katzenbach v. McClung (1964), and *South Carolina v. Katzenbach (1966) illustrate the point. The *Civil Rights Act of 1964 forbade segregation in interstate commerce. Upholding its applicability to Heart of Atlanta Motel, which mainly served travelers using Interstate 85, was easy. However, McClung’s barbecue restaurant in Birmingham, eleven blocks from a federal highway, almost exclusively served Birmingham residents. The Court held McClung’s eatery was covered on the tenuous ground that meat McClung served had once been cow in another state and his refusal to serve blacks lessened the numbers of interstate cow and burger trips. McClung nearly extinguished any state’s power over local commerce independent of congressional will.
Two years later in South Carolina v. Katzenbach, all justices agreed Congress had *Fifteenth Amendment power to suspend state-prescribed voter literacy tests and authorize the attorney general to appoint voting examiners in low turnout states. The majority also upheld the requirement that before such states amended voting laws they persuade the U.S. attorney general or the federal district court for the District of Columbia that the changes involved no racially discriminatory purpose or effect. Dissenting, Justice Hugo *Black stated that the requirement so “distort[ed] … constitutional structure … as to render any distinction … between state and federal power almost meaningless” (p. 358).
(p. 973) To those doubting then that states’ rights had any future, post-1970 trends have come as an ongoing surprise. The Rehnquist Court has revived the doctrine of state sovereignty in a number of areas, placing state sovereignty–based limitations on congressional power to enforce the Commerce Clause and section 5 of the Fourteenth Amendment, expanding the doctrine of sovereign immunity, and creating a Tenth Amendment–based “anti-commandeering” limitation on congressional power to regulate states.
In United States v. Lopez (1995), the Court struck down a commerce clause–based legislation for the first time since the New Deal. At issue was the Gun-Free School Zones Act of 1990, in which Congress made it an offense for any individual to knowingly possess a firearm in a school zone. The Court held that the measure fell beyond Congress’s commerce power because it did not regulate economic activity, and because it regulated education, traditionally within the province of the states. The Court relied on Lopez in United States v. *Morrison (2000) when it struck down the civil rights provision of the Violence Against Women Act, again because the Act did not regulate economic activity and because it regulated criminal and family law, which traditionally fall within state jurisdiction. In both cases, the Court explained that judicial limitations on the commerce power were necessary because Congress has used that power to unduly intrude on state sovereignty.
As with the Commerce Clause, the Rehnquist Court has also placed new limitations on congressional power to legislate pursuant to section 5 of the Fourteenth Amendment. In City of *Boerne v. Flores (1997), the Court ruled that Congress’s section 5 power is limited to remedying constitutional violations, and that section 5–based legislation must be “congruent and proportional” to the constitutional violation that Congress was attempting to remedy. In a passage reminiscent of Justice Black’s dissent to South Carolina v. Katzenbach, the Court reasoned that if Congress had the broader authority to create substantive constitutional rights with its section 5 power, it could use that power to override limitations on state sovereignty. In subsequent cases, the Court applied the “congruence and proportionality” test stringently, striking down provisions of the Americans with Disabilities Act (University of Alabama v. Garrett, 2001) and the Age Discrimination in Employment Act (Kimel v. Board of Regents, 2000) that abrogated the sovereign immunity of state employers.
Recent cases restricting the scope of section 5 power have come up in the context of sovereign immunity. The most sweeping affirmations of state sovereignty have involved Rehnquist Court decisions expanding the doctrine of sovereign immunity. The first step in this process was to make it more difficult for Congress to induce states to waive sovereign immunity. In Parden v. Terminal Railway (1964) the Warren Court had held the Federal Employers Liability Act’s general declaration that employees could bring federal court suits for work-related injury overrode any opposite Alabama provision with respect to employees of a state-owned railroad. However, in Atascadero State Hospital v. Scanlon (1985) the Burger Court (1969–1986) held that bringing federally aided California programs within a Rehabilitation Act’s opening of federal courts to handicapped persons experiencing discrimination required “unmistakable language in the statute itself” (p. 243).
The Court did away with the doctrine of constructive waiver altogether, and overruled what remained of Parden, in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board (1999).
The Rehnquist Court has also greatly restricted Congress’s power to abrogate sovereign immunity, even when Congress has satisfied the “clear statement” rule of Atasacadero v. Scanlon. In *Seminole Tribe v. Florida (1996), the Court held that Congress cannot use its Article I powers to abrogate sovereign immunity. Relying on its broad reading of the Eleventh Amendment in Hans v. Lousiana, the Court stated that the Eleventh Amendment placed a limit on the Article III jurisdiction of the federal courts, and prohibited Congress from using its Article I powers, including the Commerce Clause, to alter that limitation. In Alden v. Maine, the Court went well beyond the Eleventh Amendment when it ruled that Congress also could not use its Article I power to abrogate states’ immunity to suit in state courts, even though the Eleventh Amendment does not apply in state courts. The Court held that sovereign immunity was part of the “residuary and inviolable sovereignty” that states had retained when they ratified the constitution. This strong language warranted a strident dissent from Justice Souter, who accused the Court of applying a Lochner-style natural law approach to sovereign immunity.
Notwithstanding Seminole Tribe, Congress retains the power to abrogate sovereign immunity pursuant to section 5 of the Fourteenth Amendment. However, as discussed above, the Rehnquist Court has also restricted Congress’s section 5 power, and hence Congress’s authority to abrogate sovereign immunity pursuant to that provision.
Post-1970 decisions have also lessened individuals’ abilities to secure federal injunctions against adverse *state action and federal court transfers of state litigation involving federal rights. The Burger Court was only two years old when *Younger (p. 974) v. Harris (1971) blunted Ex parte Young, holding that, once state criminal proceedings are initiated, federal courts will not grant injunctive relief before demonstration of the infeasibility of fair state court determination of any federal issue at stake. By 1991 divided justices had curtailed both injunctive and declaratory federal relief regarding both ongoing criminal and civil state court proceedings. They even aborted relief when, though federal litigation began first, state proceedings commenced before the federal courts reached the merits of the federal rights claim. Occasionally liberal justices condemned conservative justices, as did Harry *Blackmun in Pennzoil v. Texaco (1987), for “expand[ing] … Younger to an unprecedented extent … no matter how attenuated the State’s interests … and what abuses … plaintiff might be sustaining” (pp. 27–28).
In Seminole Tribe v. Florida (1996), the Rehnquist Court placed a further restriction on the doctrine of Ex parte Young, holding that relief pursuant to that doctrine would not be available when Congress had provided an alternative administrative remedy. This ruling created considerable confusion about what type of remedy was necessary to preclude relief under Young. The confusion was compounded in the 1997 case of Idaho v. Coeur D’Alene Tribe when the Court held that the Coeur D’Alene tribe could not invoke Ex parte Young in a suit against the state of Idaho to quiet title to submerged land. In his plurality opinion, Justice Kennedy proposed a balancing test that would have weighed the state interests against the scope of the relief requested in every Ex Parte Young action and effectively eviscerated the doctrine. However, a majority of the Court declined to adopt Justice Kennedy’s approach, and more recently the Court has indicated that the doctrine retains its vitality.
Since 1970, the Court has twice experimented with placing Tenth Amendment–based limitations on Congress’s power to regulate the states. In *National League of Cities v. Usery (1976), a 6-to-3 majority voided a 1974 amendment to the Fair Labor Standards Act expanding federal maximum hours and minimum wage provisions to state and local government employees because, explained Justice William *Rehnquist, those provisions made more expensive those governments’ basic and traditional functions—for example, police protection. Hodel v. Virginia Surface Mining (1981) decided that Congress could require states either to formulate strip-mining standards conforming to federal standards or to let strip-mining be governed by federal regulatory programs. It also fashioned a constitutional test. Did congressional legislation regulate states as states, indisputably impinge on an attribute of state sovereignty, and directly impact integral operations in areas of traditional governmental functions? If any part of the answer was negative, the legislation was sustained.
Applying the test produced conflict and confusion. Then, in *Garcia v. San Antonio Transit Authority, a 5-to-4 majority asked whether employees of a city-owned bus line were excluded from National League’s veto of congressional authority and overruled National League itself. Rehnquist, about to become chief justice, was not happy at this reversal of his 1976 states’ rights victory. He wrote a one-paragraph dissent. He did not think it necessary for the dissenters “to spell out further … a principle that will, I am confident, in time again command the support of a majority of this Court” (p. 580).
Chief Justice Rehnquist proved Associate Justice Rehnquist to be correct. Only seven years after Garcia, in New York v. United States, the Court ruled that the Tenth Amendment prohibited Congress from “commandeering” state legislatures to effectuate federal programs. The Court struck down a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 that required state legislatures to take title of land containing radioactive waste that was not disposed of by a particular date. The Court held that the provision was unduly coercive and thus violated the protections for state sovereignty embodied in the Tenth Amendment. In United States v. *Printz (1997) the Court held that the “anti-commandeering” rule also prohibited Congress from commandeering state executive officials, striking down a provision of the Brady Handgun Violence Prevention Act that required state law enforcement officers to perform background checks of purchasers of guns. In both cases, the Court viewed the provisions at issue as an attempt by Congress to enlarge the power of the federal government at the direct expense of state governmental officials. However, it is unclear whether the “anti-comandeering” test will prove any more workable than the Tenth Amendment–based limitations from National League of Cities.
Hence, while the doctrines of interposition and nullification no longer have any force in the legal system, state sovereignty is far from dead. Indeed, it has been the rallying cry of the Rehnquist Court, which has imposed significant state sovereignty–based limitations on the power of the federal government in general, and Congress in particular. While it is unclear what the future holds for proponents of state sovereignty, it is clear that “our federalism” still has an important role to play.
See also federalism.
Laurence H. Tribe, American Constitutional Law, Volume I, 3rd ed. (2000). Melvin I. Urofsky, A March of Liberty: (p. 975) A Constitutional History of the United States (1988). Erwin Chemerinsky, Federal Jurisdiction, 4th ed. (2003).
A. E. Keir Nash; revised by Rebecca E. Zietlow