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August 16, 2005
Congress Should Mind Its Own Business
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Marci Hamilton holds the Paul R. Verkuil Chair in Public Law at Yeshiva University's Benjamin N. Cardozo School of Law and is the author of "God vs. the Gavel: Religion and the Rule of Law." |
Congress does not attack enough of the "big national problems," because it has been given plenary power to address every single issue a constituent brings to its door. There was no crying need for the Gun-Free School Zones Act, but because Congress did not even question its power, it spent its resources doing that while it did not address other, far more pressing national problems.
Federalism keeps some issues in the states, leaving the federal government to focus more clearly on what is national in nature. (The additional reason that Congress does not tackle the tough issues, is because the Court has permitted it to delegate the hard policy choices to the executive branch and administrative agencies, so it is both unaccountable and capable of addressing every issue in the universe. This is an institution with no meaningful checks, which yields vapid legislation and a focus that has drifted from that which Congress was supposed to do to whim.)
With respect to Eddie's examples, just which "righteous" lawsuits has federalism precluded? The end of the Religious Freedom Restoration Act meant, e.g., that parents could no longer claim the right to avoid child support because they lived in a religious commune that required them to keep all of their money there. It meant religious groups had to obey neutral, generally applicable laws, which is as it should be.
Garrett held that the states could not be sued under the ADA, but that is hardly a blow to civil liberties, because the fact is that virtually every state recognizes disability rights. The ACLU quickly settled the ADA cases from other states that were pending at the Court so that the Court would have to address the Alabama [Garrett] case, because that was the only state without disability rights. The Court, therefore, has struck down redundant legislation. And why is that? Because the states are no longer the backwater for civil rights they were in the ’60s. The same interest groups that lobby at the federal level have been lobbying at the state level for years.
I think if the Court had decided Raich, the medical marijuana case, differently, you and other liberals would look at federalism differently. But Raich was decided incorrectly, to put it mildly.
Posted at August 16, 2005 12:28 PM