Professor Hamilton’s defense of the importance of state and local governments — they are laboratories for experimentation, they are closer to the people, they are less likely to be captured by special interests — really misses the point. No one is talking about eliminating state and local governments. Nor have any of the Supreme Court’s decisions concerning federalism had anything to do with these values. The Supreme Court’s decisions about federalism over the last decade, until the last couple of years, have simultaneously invalidated desirable federal social legislation and preempted important state regulations of business.

In the name of federalism, the Supreme Court struck down federal laws requiring the cleaning up of nuclear wastes, mandating background checks for firearms, prohibiting guns near schools, allowing victims of gender-motivated violence to sue, expanding protection for free exercise of religion, and permitting state governments to be sued for discrimination based on age and disability. Contrary to Professor Hamilton’s assertion, none of these cases were places where state experimentation is desirable; nor are they instances where limiting Congress’s power served any of the important values she identifies. At the same time, the Supreme Court found state and local laws to be preempted by federal law in areas such as regulating tobacco ads near schools, creating liability for unsafe products, and requiring insurance companies to disclose unpaid obligations to victims of the Holocaust and their descendants.

Will John Roberts follow such a conservative agenda of using federalism as a guise to strike down federal civil rights and regulatory laws, while protecting business through broad preemption? That is what Senators need to know.