Federalism: The Next Generation

Full-text available at SSRN. See link in this record.This essay is part of a symposium on a series of Supreme Court decisions during the 1990s that reinvigorated, and at times reinvented, federalism-based limits on congressional power, a constitutional doctrine that has lain dormant since a trilogy of post-New Deal decisions repudiating the Court’s Lochner era jurisprudence of reserved state powers. The long term practical impact of the recent decisions remains unclear, even if the basic contours of the new doctrine are fairly discernable. Indeed, the new federalism raises more questions than it answers, and its final frontiers will depend on how the Supreme Court resolves this next generation of federalism questions. I focus on one subset of questions raised by the recent federalism decisions: their implications for the scope of “other” federal powers, particularly the power to enforce the Reconstruction Amendments and the spending power. Until recently, the commerce power has been the dominant focus of cases concerning the scope of federal authority, and the Supreme Court has paid relatively less attention to the scope of other federal powers. But many of the new federalism limits are specific to the commerce power and do not appear to apply to other federal powers. In light of new sovereignty-based limits on the commerce power, including the “no commandeering rule” and decisions denying Congress the authority to abrogate state sovereign immunity under the commerce power, the power to enforce the Reconstruction Amendments and the spending power are especially attractive and potentially expansive alternative bases of authority for federal action. It is therefore to be expected that the courts will increasingly confront questions concerning the scope of these other federal powers. How the courts resolve those questions will go a long way toward determining whether the new federalism effects a significant practical shift in the balance of federal and state authority. Beyond its practical significance, the resolution of these issues is of immense doctrinal interest because the courts are engaged in their first extended analysis of the scope of congressional power to enforce the Reconstruction Amendments since the nineteenth century, and may soon address the spending power in much the same way