We Are All Federalists Now

Chief Justice Rehnquist's prescient prediction in Garcia v. San Antonio Metropolitan Transit Authority (1985)

|The Volokh Conspiracy |

Throughout the 1970s, 1980s, 1990s, and 2000s, the issue of federalism sharply divided the Supreme Court. National League of Cities v. Usery (1976) set aside a federal law because it violated the principles of federalism. But less than a decade later, Justice Harry Blackmun changed in his position in Garcia v. San Antonio Metropolitan Transit Authority (1985). Blackmun now contended that the political process, and not the courts, were responsible for protecting state sovereignty. Then-Justice Rehnquist dissented in Garcia. And he offered what would prove to be a prescient prediction:

"I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court."

He was right. But I don't think he could have anticipated how large that majority would eventually become. In recent years, elements of the Rehnquist Court's federalism jurisprudence have gained unanimous support.

Consider Murphy v. NCAA. All 9 Justices accepted the general commandeering principles articulated in Printz v. United States (1997). Justice Ginsburg wrote a partial dissent for Justices Sotomayor and Breyer that did not dispute Printz, and its predecessorNew York v. U.S. Both Ginsburg and Breyer dissented in Printz.

And more recently, Allen v. Cooper was also unanimous. All 9 Justices went along with the general sovereign immunity framework articulated in Seminole Tribe. Justices Ginsburg and Breyer are the only remaining Justices from the Rehnquist Court who regularly dissented in sovereign immunity cases. Yet, they acquiesced in Allen. Indeed, they threw in the towel on Seminole Tribe, citing stare decisis concerns. They explained in a concurrence:

That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something isamiss. Indeed, we went astray in Seminole Tribe of Fla. v. Florida (1996), as I have consistently maintained. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., (1999) (dissenting opinion); Federal Maritime Comm'n v. South Carolina Ports Authority (2002) (same). We erred again in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank (1999), by holding that Congress exceeded its §5 powers when it passed a patent counterpart to the copyright statute at issue here. But recognizing that my longstanding view has not carried the day, and that the Court's decision in Florida Prepaid controls this case, I concur in the judgment.

This support for federalism is not limited to the Supreme Court. So-called "sanctuary" states and cities have rallied behind Printz, as well as NFIB v. Sebelius, to fight the Trump administration's executive actions on immigration. Indeed, several of the blue states filed briefs in Printz opposing the commandeering doctrine. But now, they have come to support that doctrine.

Yesterday, President Trump said he had the "ultimate authority" to order the governors to re-open the country:

When President Trump was asked during Monday's news briefing what authority he has to reopen the country, he didn't hesitate to answer. "I have the ultimate authority," the president responded, cutting off the reporter who was speaking.

Trump later clarified his position further, telling reporters, "When somebody is the president of the United States, the authority is total and that's the way it's got to be. … It's total. The governors know that."

The local leaders, Trump said, "can't do anything without the approval of the president of the United States."

Several reporters called yesterday and asked me what was talking about. I have no clue. The federal government lacks the power to order governors what to do. Such a power was expressly foreclosed by Printz. (I discuss the commandeering doctrine in this article.) I gave this quote to the Washington Post:

Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, told The Post that if Trump were to call up Cuomo tomorrow and order him to send everyone back to work, Cuomo could easily tell Trump to "get lost, and that would be his prerogative."

I actually said "get lost," followed by several expletives, but the reporter omitted that part.

But lest we forget, there was a dissent in Printz. Justice Stevens argued that the federal government could order governors to facilitate important federal goals–specifically, to provide troops for the draft:

Thus, for example, the decision by Congress to give President Wilson the authority to utilize the services of state officers in implementing the World War I draft, see Act of May 18, 1917, ch. 15, § 6, 40 Stat. 80-81, surely indicates that the National Legislature saw no constitutional impediment to the enlistment of state assistance during a federal emergency.

Under Justice Stevens's logic, the federal government could order the states to stay locked down, or open up, if there was a "federal emergency."

There is a difference, of course, between a President unilaterally issuing an order to Governors based on Article II powers, and doing so pursuant to an enacted statute. For example, Truman could have seized the steel mills if Congress had authorized the taking. But modern-day criticism of Trump seems to accept Printz's general principal.  No one is championing Justice Stevens's dissent. Indeed, there is no support for one of Stevens's proposed amendments, that would have overruled Printz.

We are all Federalists now.

 

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  1. Great, now that the Woodrow Roosevelt horse has left the barn.

    1. And thereby violated the stay at home order – – – – – – – –

  2. Respectfully, I think you are wrong on three levels.
    First and foremost, we essentially are talking about the exercise of war powers here. Imagine instead of sending us the Wuhan Virus, the ChiComs had nuked us. No one would suggest that a Governor could supercede the President (CIC) in a martial law situation, and we are essentially living under martial law.

    On a more practical point, the POTUS can Federalize a state’s National Guard, and both Eisenhower and Kennedy did exactly that in desegregation cases in Arkansas, Alabama (and I believe elsewhere). All it takes is Trump to say “their mine” and Cuomo’s National Guard are following Trump’s orders — including arresting Cuomo if Trump orders them to.

    Third, you are going to have to admit that the Civil Rights Act of 1964 was unConstitutional — you are going to have to reverse Heart of Atlanta and Katzenbach and the rest.

    Fourth, the “Sanctuary Cities” have to be viewed in light of Arizona’s attempt to do the opposite (enforce immigration law on a state basis) and being struck down. QED, that’s a Federal authority, not a state authority.

    Also interesting (and I don’t see mentioned) are the states declaring them exempt from the 1968 gun laws (if not the 1934 act) — a couple of states and numerous VA counties have done this.

    1. 1. Unless Congress declared war without telling any of us about it, no we are not doing anything even remotely like exercising war powers. While I don’t disagree with the assessment that we are “essentially living under martial law”, it has been declared by the governors and cannot be declared (or undeclared) by the President without an enabling act of Congress.

      2. Yes, the President can federalize the National Guard. No, that does not suddenly give Guardsmen arrest powers.
      Note that if Cuomo is violating some federal law, the President already has federal level law enforcement officers who could enact the arrest. But even they can’t arrest a governor just on the President’s say-so.

    2. Can you elaborate on your third and fourth points? While there certainly is a school that concludes the Civil Rights Act exceeds confessional authority, I’m not sure that the contrary view necessarily represents a wholesale rejection of the basic principles Prof. Blackman is outlining. And I don’t even understand what conclusion you’re drawing about sanctuary cities (or gun control), and how that relates to your larger point.

      1. Yeah. Printz presumes Heart of Atlanta Motel and McClung are correctly decided.

  3. Probably no power to order unlocking the states, but POTUS seems to have to power to control interstate transport to a massive degree: grounding all flights into and out of states he deems [with support from his medical team] to be potential contagion hotspots, The same for international commerce. Under the exigencies of a national emergency, to order complete quarantine of said states [methinks this was discussed in previous posts on this blog]. Of course, there’s always the Hawaiian Judge waiting in the background, but I wonder how SCOTUS will ultimately react.

    1. “Of course, there’s always the Hawaiian Judge waiting in the background”

      “Aloha” can mean “hello,” “goodbye,” or “I’m issuing an injunction.”

      1. A now-dead ConLaw Professor stated that Roger Taney wrote in his diary that he fully expected Lincoln to have him arrested.

        And Andrew Jackson is known to have said “John Marshal has made his decision, now let’s see him enforce it.”

        So Trump gets Impeached – again. Big deal, everyone will see it as being political and the iffy Senators (such as Collins) are up for re-election this fall. Do you honestly think Collins wants to take on the tourist industry in her own state — I don’t.

        There’s a visceral level of populist opposition to the lockdown, Rush Limbough and others are openly attacking it, and what these tin-horn despots don’t realize is that their own citizens will view Trump as saving them from despotism.

        And come next spring, with a Republican majority in the House as well, I’m thinking we may see some Federal Judges Impeached…

        1. Andrew Jackson didn’t disobey a Supreme Court order. He commented that the state of Georgia should disobey the order before any actual writ had been issued to order the state of Georgia to do anything. Then Georgia issued a pardon to comply with the Supreme Court’s mandate anyway (I can’t recall if an order was actually issued after the opinion; I know there was some kind of dispute related to the All Writs Act that complicated things).

  4. One other thing: The Interstate Highways were built under the National Defense Highway Act — I’d be very surprised if there isn’t something in there about the Army being able to take them over in time of “national emergency.”
    So all Trump has to do is tell the respective Governors that hie is taking over their interstates due to the “national emergency” and then let anyone and everyone onto them.

    The rule on double trailers is that states MUST allow them on local roads something like 1/2 mile urban and 2 miles rural from any exit, and there is something about Federal authority extending that far. And remember that the old “US” roads (e.g. Route 66) are also Federal Highways, parts of some (US 1, 3, & 5) dating back to King George — I don’t know their Federal status.

    So Trump could open the highways and then order Federalized National Guard Troops to arrest any State Trooper stopping any vehicle operating on them. That’s Presidential War Power.

    So it will be like George Wallace standing on the school house steps — how’d that work out?

    1. But…have any states shut down their interstate highways?

        1. That’s not germane.

          Trump can’t activate the national guard to open what’s already open.

    2. I believe US Routes are a collection of state highways, merely identified and coordinated according to a scheme developed by the American Association of State Highway and Transportation Officials (AASHTO).

      There is little federal involvement, although some federal funding flows to them through the states

    3. That’s why the Constitution gives states the power to appoint militia officers—so they are always loyal to the state and not the federal government.

  5. We are all federalists, not Federalists.

    One of Justice Stevens’ proposals seems to bring up a topic that was discussed here a few years ago: Can a treaty repeal a part of the Constitution? Not sure if the proposal seeks to end federalism and bring forth a unitary state.

  6. I’m not a federalist. I’m not a Libertarian either. #catchthewave

    Shame on Justice Breyer for being so wobbly. You’ll never see Thomas or Alito jumping back off the shark.

    1. That’s because, as a general matter, liberals understand the concept of nuance and conservatives don’t.

  7. This is just being reductive. No one on the left or the right thought states had no power before the federal government, nor that the federal government has no power over the states. It’s all been line drawing about when and where.

    Except Trump.

    Don’t pretend Trump is agreeing with some liberal line of reasoning here.

    1. You’re right, of course, but you don’t perform the years of taxing mental gymnastics required to be a Trump supporter at this stage, then throw it all away on account of one more routine example of the boss saying the quiet part loud. And life on the Trump Train would become intolerable after even the most circumspect mention of the boss’ authoritarianism, unaccompanied at least by some reassuring, albeit fictitious whataboutism.

      I know that sounds snarky, and I meant every word, but what it doesn’t convey is that I actually feel for Josh. To hear erstwhile cultists tell it, the tiniest deviation from sanctioned orthodoxy can be terrifying. I appreciate the effort. Baby steps.

  8. I agree with Blackman’s point.

    I will say that the draft might be an exception to the commandeering rule, but not based on any vague notion of an emergency. Congress has a specific Article I power to raise and support armies. It is possible that inherent in THAT power is some authority to commandeer state resources. Especially since it is related to another federal power- to organize and call up the state militias in time of war, which CLEARLY authorizes commandeering.

    So it is possible that in a wartime draft, a President could commandeer state resources without running afoul of Printz. It’s a pretty narrow exception though.

  9. So, what about (federal) jury duty (and the other portions of the civil “knot”)? So what about the (almost unlimited role) of Commander-In-Chief? Some taxes are implicit and the chief executive has the implied duty to collect such taxes; likewise, some powers are implicit in the role of Commander-In-Chief. [Oddly enough, looking back through the works if Illya Somin one finds numerous examples which tend to favor Trump’s position.]

  10. Unfortunately Scalia undermined one of the more important federalism provisions by mischaracterizing the 2A as an individual right and not a federalism provision.

  11. One can’t make any observations about federalism from this episode, though for sure Josh was flattered to be interviewed by the Washington Post.

    There’s no real disagreement here. The Governors would much rather have the federal government take control of the situation, but in the present crisis are forced to do extensive workarounds of the type unknown since the Mount Vernon Compact of 1785. Things will go back to normal once we again have a President who is competent, intelligent, and an emotionally mature adult. We’ve had 44 of those so far.

    1. No one wants to take responsibility for anything any more that might present any sort of risk. Not unless it’s a generational sort of policy achievement. (Or devolution, depending on one’s view of the policy.)

      And it’s really not limited to any one branch of government — we have a legislature that hands off to regulatory agencies, courts that defer to the executive and to Congress, and an executive branch that has acquiesced in the creation of increasingly “independent” agencies so tough actions can be taken without the president getting the direct blame.

      1. I disagree. In any natural disaster the chief executive gets either the credit or the blame, which is why it’s the Governor (or the President) who puts his face in front of the cameras. GW Bush got credit with 9/11, the blame for Katrina. There’s no escaping it. The same thing now, with Trump holding (unnecessary) televised daily briefings, and governors like Newsom and Cuomo all too glad to hog the airwaves.

  12. Stevens’ dissent had four votes, and O’Connor’s concurrence, after not explicitly adopting the Court’s opinion (though not labeed as a special concurrence), goes on to cabin the decision very, very closely, perhaps angling to draft the narrowest ground of the holding.

    That said, from a quick refresher skim, Stevens seems to be talking about Congress, rather than the Executive.

    Mr. D.

    1. To be clear, O’Connor joined Scalia’s opinion, but narrowed the grounds in the concurrence and didn’t explicitly adopt the opinion in the text of the concurrence. Nuance, not revisionism.

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