Feda what, Feda who?

Recently read an American Prospect article from last spring. Very worth checking out.

Richard Briffault writes about the Rehnquist Court's unbalanced expansion of the federalism principle. (Federalism, itself, being that fairly broad and problematic word for a legal theory.) We can agree, for now, that the idea asserts a greater power to state sovereignty and less space for federal regulation. In the language of the Court, the fed government cannot "commandeer" the regulatory power of the states. Thus, for example, the Court struck the portion of the handgun regulating Brady bill that required state police to enforce the federal law.

Briffault writes:

The Rehnquist Court's jurisprudence in this area has had a strained and curious quality. Although the five conservative justices claim to be strict constructionists, their federalism decisions are not rooted in the text of the Constitution. Nor are they particularly attentive to the values at the core of the federalist model of government: respect for interstate diversity, political experimentation and grass-roots participation. Instead, these decisions are extremely formalistic, taking state power as an end in itself rather than a means for promoting the rights and interests of the people.
At the same time, the broader body of the Court's work displays an inconsistent interest in empowering the states. Most famously in Bush v. Gore but also in a variety of cases challenging state regulation of such things as cigarette advertising and HMOs, most of the justices who in other settings support states' rights have sought to curtail state powers, cut off state initiatives and limit the states' ability to vindicate political rights. Rather than demonstrating a principled commitment to the autonomy of the states, the justices' opinions shift with the context -- leaving the Court open to the charge that, like many politicians, it is using states' rights as a doctrinal rallying cry for other political ends. The Court's conservative majority has moved along three paths to limit the power of the federal government. First, the Court has been restricting the subjects on which Congress can legislate. Second, it has prohibited Congress from requiring state and local governments to help enforce national laws. And third, it has denied individual citizens the ability to sue states that violate national laws.

Reasonable people will differ on the classic federalism questions, regarding simply the federal power to make certain laws...should the commerce clause (which states that the federal government can make laws where interstate commerce is concerned) allow for broad ranging federal regulation. ie...do school yards so effect interstate commerce that the federal government could regulate the proximity of handguns to those schoolyards?
The Court said no, and I think there you have a fair discussion of the commerce clause.
The problem of inconsistency arises when we ask why we want states or the federal gov to have the regulatory power in particular fields.

States, it is said, (Justice Brandeis said it) can be "laboratories of democracy," experimenting with policies and providing for real participation.

I agree. Only, it is now local government that can truly meet Brandeis' laboratory; so, those big states rights folks ought to hit zoom on mapquest a time or two. In any event, the idea is a good one.
But if that is the idea, why won't the Rehnquist court let states expirement?

Indeed, the Court's federalism cases suggest an indifference to the states' potential to act as democratic, locally accountable policy makers within our federal structure. And this impression is bolstered by other cases in which the Court has given the states short shrift. In the most obvious example -- the Florida 2000 presidential recount -- the Court dramatically intervened in an area traditionally left to the states, rejected the efforts of a state supreme court to provide more vigorous protection of the rights of Florida voters whose ballots had not been tabulated by local ballot-counting machinery, and opened the door to nationalization of election administration. Led by the Rehnquist bloc, the Court twice overturned the state supreme court's actions with little apparent concern about the implications for federalism.

In other settings, too, this group of justices has attached little weight to the value of enabling states to make policy decisions concerning matters important to their citizens. In Lorillard Tobacco v. Reilly, for instance, the Court invalidated Massachusetts regulations that sought to address the problem of youth smoking. Massachusetts had prohibited outdoor cigarette advertising near schools, public parks and playgrounds, and it had required point-of-sale advertising near those places to be more than five feet from the floor (and thus out of the reach of young children). The tobacco industry claimed that the Massachusetts rules were preempted by the federal cigarette labeling law, which requires a surgeon general's warning on cigarette packs and bars additional state regulation of cigarette advertising. Lower courts in this and several other cases had held that the federal law preempted only state regulation of the content and not the location of cigarette advertising. But in an opinion joined only by the five proponents of the new judicial federalism, the Supreme Court agreed with the industry that the limited, ambiguous language of the federal law entirely barred all state initiatives concerning cigarette advertising.

Similarly, in Rush Prudential HMO v. Moran, an HMO claimed that an Illinois law providing for an independent medical review of certain denials of benefits by HMOs was preempted by the Employee Retirement Income Security Act (ERISA), the federal law regulating employee pension and health benefits. ERISA generally displaces state laws regulating employee benefit plans. However, the Illinois law was not at odds with any specific provision of ERISA, which does not address HMOs at all. Moreover, ERISA provides that state laws regulating insurance are exempt from preemption. Nonetheless, the Court divided over the issue. Four of the five justices who support states' rights in the commerce clause, 10th Amendment and sovereign immunity settings concluded that the Illinois HMO law was preempted by ERISA. Though the Illinois law has counterparts in 40 other states, the four dismissed concerns about the impact that such a decision would have on the states' ability to develop policy in an area of vital importance to their residents. Only Justice Sandra Day O'Connor's defection from the bloc saved the Illinois statute.

Good article.