Supreme Court Opens New Round in Federal-State Fight

The judicial wing of the crusade to undo the New Deal struck again two weeks ago. In another of the 5-4 decisions with which the U.S. Supreme Court’s conservatives have been reshaping the nation’s constitutional landscape, the court ruled, on March 27, that the 11th Amendment prevents Congress from using the commerce clause to authorize a federal suit against a state without its consent. Relying primarily on a controversial decision from 1890, Chief Justice William H. Rehnquist threw out a suit by the Seminole Indian tribe to force Florida to negotiate about gambling on the Indian reservation.

The campaign to expand states’ rights at the expense of the federal government is as old as the antebellum effort to protect slavery and as recent as the current campaign by congressional Republicans to emasculate the federal establishment. Conflict between the two levels of government is woven into the fabric of a federal state.

States’ rights devotees are a fickle lot, however. Their devotion to the cause is almost always a fig leaf for other interests, and they readily abandon it to further those interests. Antebellum Southerners who protested federal interference with slavery also insisted on vigorous federal enforcement of the fugitive-slave laws. Politicians who routinely bewail federal “interference” change their tune when it comes to tobacco or sugar subsidies. Today, right-wing Republicans forget about states’ rights when it comes to promoting a business- upported federal law limiting product-liability suits.

Supreme Court justices are no different. Justice Sandra Day O’Connor, the court’s staunchest state advocate, forgets local autonomy when it comes to affirmative action. Her opinion in the 1989 Richmond case involving government contract set-asides for minorities resulted in striking down some 236 affirmative-action plans adopted by state and local governments. Her recent opinions on minority voting districts may have a similar effect on state legislative measures to assure fair representation for minorities.

The premise of this assault on national authority is that the protection of liberty is with the states. Nonsense. In America, as elsewhere, it is usually only the central government that offers any protection to minorities and dissenters. Would Jim Crow have been dismantled without federal intervention? Far from being fonts of virtue and efficiency, state governments have often been rife with corruption and incompetence.

The states’-rights campaign is really aimed at liberalism and the welfare state--which have largely depended on federal action. This was apparent when the current judicial phase of the campaign began, in 1976. In a 5-4 decision, Rehnquist invoked “constitutional policy” to strike down application of the wage-hours provisions of the Fair Labor Standards Act to state and local employees. The opinion laid down such vague guidelines, however, that after a decade of confusion, it was overruled, in 1985, as unworkable. But all politics is local, as former House Speaker Thomas P. (Tip) O’Neill said, and Congress promptly rewrote the act to exempt state and local governments.

When Justice Anthony M. Kennedy joined the court, the conservatives had a majority and quickly asserted themselves. In 1990, they limited the Age Discrimination in Employment Act to exclude state judges. In 1992, they set aside a federal program for dealing with radioactive toxic waste because it required the states to impose federal enforcement mechanisms--even though the states had not only designed the program but had vigorously lobbied for it.

The biggest bombshell in this series came last year, as the court’s conservatives became a smoothly functioning unit. Until then, states’ rights rulings had not affected congressional action regulating private activity, only laws aimed at state activities. Federal regulation of private economic activity had been the target of the pre-1937 conservative justices--who struck down laws dealing with child labor, the agricultural crisis and industrial recovery. This had created one of the most serious constitutional crises in U.S. history. Since 1937, however, federal commerce-clause power over private economic activity had become so firmly established that it was rarely challenged.

That changed last year. In United States vs. Lopez, the five conservative justices struck down a federal law barring guns within 1,000 feet of a school--because it was not a purely economic activity. Unless Congress can demonstrate substantial interstate elements, Rehnquist wrote, the commerce clause does not allow Congress to deal with the problem--and there was no such demonstration here. The majority was either ignorant or indifferent to the fact that nearly all guns in schools move in interstate commerce, and that school violence severely impedes education and thus has a significant, if indirect, effect on the economy.

The Seminole tribe case, involving a private suit against a state, merged the two lines of cases. It turned on an interpretation of the 11th Amendment that reads, “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state.” The plain meaning would seem to be that it applies only to suits by citizens of one state, a Californian, for example, suing another state, such as Oregon. This also fits the scholarly consensus about the amendment’s history: It was adopted in 1795 to overturn a Supreme Court decision allowing a South Carolinian to sue Georgia on a contract claim, and not to create a broad state immunity.

That same constitutional history justifies limiting the amendment to contract claims, or similar suits against states by out-of-staters. The Seminole tribe case, however, involved a Florida Indian tribe suing the state of Florida on a federal claim created by Congress with no parallel in state law--which doesn’t fit in either the text or the history of the amendment.

Judicial conservatives have insisted that judicial restraint requires judges to adhere closely to the text and history of the Constitution. That, however, apparently applies only to individual rights against the state--not when states’ rights are involved.

Equally immaterial, it seems, is precedent. Though some ambiguous language in a much-criticized 1890 decision during the heyday of the court’s conservatism could be read to support the majority, a 1989 environmental-law decision was directly contrary, and other recent decisions have assumed the existence of congressional authority, on which Congress has relied in passing recent laws. And the majority conceded that the Constitution left the states with no power at all over commerce with Indian tribes.

None of this mattered to a majority openly willing to revive and expand the outmoded and authoritarian “king can do no wrong” philosophy reflected in the 11th Amendment--especially where states’ rights could be enhanced at the expense of federal authority. That this could leave federal rights without an effective remedy did not seem to bother the majority. But that is hardly surprising, for these are the same judges who have constantly erected procedural barriers to suits charging official wrongdoing.

The decision is potentially far-reaching. It may shield state wrongdoing against being held accountable for violating bankruptcy, environmental, antitrust and federal social-protection laws. So far, it will not affect civil-rights cases brought under the 14th Amendment--though that may change.

Rehnquist tried to minimize the decision’s effect by noting the tribe’s rights could be enforced in a suit by the federal government. But federal resources are being cut, and, in many areas, such as social welfare, only a private person is interested in enforcement.