Government Power

Dear Gene,

       As a policy matter, I suppose I’m ambivalent about the Supreme Court’s recent decisions striking down parts of the Brady Bill, the Religious Freedom Restoration Act, and the Gun Free Schools Act. These are, by and large, symbolic laws that allow Congress to reap the political benefits of declaring its opposition to evils that everyone opposes (guns in schools, religious discrimination), while passing off to the states the costs of administration and enforcement. And in all three cases, Congress can achieve its goals by drafting laws that are more narrowly focused.
       On the other hand, if the Supreme Court is seriously committed to enforcing constitutional limits on Congress’ power for the first time since the New Deal, the states might ultimately suffer. By suggesting that Congress can’t co-opt the states to carry out federal programs, the court has called into question the Welfare Reform Act of 1996, which directs the states to administer federal block grants. Doesn’t this discourage the kind of “cooperative federalism” that has been a centerpiece of the Republicans’ (and now the New Democrats’) domestic agenda since the 1980s? The range of other federal programs that now seem constitutionally vulnerable–(see ” Dual Sovereigns,” the New Republic, July 28, 1997) also gives me pause. Isn’t Justice Breyer correct to fear that Congress might respond to the court’s vision of “dual sovereignty” by cutting states out of the loop entirely?
       But these are political, not constitutional concerns. As a constitutional matter, I’m frankly bewildered by the Brady decision in particular. Ever since the Warren era, conservative judges and law professors have been reminding us tirelessly about the virtues of judicial restraint and the evils of judicial activism. When conservatives talk about judicial restraint, sometimes they mean that judges should defer to Congress and the president on important questions of public policy, and sometimes they mean that judges should be faithful to the text and original understanding of the Constitution. But whatever definition of restraint you prefer (and the two definitions often point in opposite directions), both seem impossible to reconcile with the court’s methodology in the Brady case.
       Writing for the court, Justice Scalia held that the constitutional principle of “dual sovereignty” prevents Congress from ordering state officials to execute or administer federal laws. Isn’t Justice Scalia’s approach inconsistent with his opinion in Harmelin vs. Michigan, in which he set out a clear and principled methodology for interpreting the scope of the Eighth Amendment’s prohibition on cruel and unusual punishment? In Harmelin, Justice Scalia said when there was no constitutional text on point, and when the original understanding of the Constitution was ambiguous, the courts should defer to the political branches. But in the Brady case, Justice Scalia concedes that there is no text on point, and that the original understanding of congressional powers is ambiguous. (He reviews the debates between Madison and Hamilton and concludes that Madison was right and Hamilton was eccentric.) But instead of deferring to Congress in the face of historical ambiguity, Justice Scalia decides unexpectedly that ambiguity empowers the court to enact a highly contestable theory about what federalism should mean.
       How can Justice Scalia’s methodology in cases involving limitations on Congress’ power be reconciled with his methodology in cases involving the Bill of Rights? If Justice Scalia thinks that a different methodology is appropriate in the congressional power cases, he doesn’t tell us what it is; and I’m having a hard time imagining any methodology could be reconciled with the commitment to textualism and original understanding that Justice Scalia has so eloquently espoused. One possibility might be to say that Congress’ powers should be understood no more broadly than they would have been understood by the people who ratified the Constitution in 1791. But this approach, which Justice Thomas flirted with in the Gun Free Schools Act case in 1995, is so radical that not even Justice Scalia joined him. If, for example, Congress’ power to regulate interstate commerce were rolled back to its late-18th-century boundaries, most of what the post-New Deal federal government does would be unconstitutional. (Under a strict application of the Madisonian vision, Congress would even lack the power to charter a national bank.) It was for this reason that the Supreme Court abandoned the manufacture/commerce distinction in 1937, and for this reason that even Justice Thomas concedes that it may be “too late in the day” to resurrect an 18th-century vision of the commerce power.
       Do you agree with Justice Thomas that it’s “too late in the day” to resurrect the vision of enumerated powers that prevailed in 1791? And if you do, what historical understanding of enumerated powers do you think the court means to resurrect in its place? The understanding of 1868, when the 14th Amendment was ratified? Of 1935, before the switch in time? Both of these visions would bring the current federal government to a grinding halt. Do you think this would be a good or bad thing? And if you think the court meant to embrace a post-New Deal vision of enumerated powers, what, precisely, does that vision look like, and how would you reconcile it with a jurisprudence of original understanding? I’m genuinely at a loss here, and would appreciate guidance. Please advise.

Best regards,
Jeff Rosen