Warren and Rehnquist Courts
EYoung at MAIL.LAW.UTEXAS.EDU
Wed Aug 2 14:18:51 PDT 2000
The Court's recent preemption cases are generally hostile to state
regulatory authority, even (perhaps it is fair to say especially) when the
"pro-states" majority is writing. See, e.g., U.S. v. Locke, 120 S. Ct.
1135 (2000) (Kennedy, J.) (curiously reviving dual federalism by holding
that the presumption against preemption does not apply outside areas of the
states' "traditional powers"); Crosby v. National Foreign Trade Council
(June 19, 2000) (Souter, J.) (holding that the mere legislative delegation
of power to preempt state trade sanctions preempts state sanctions, even
when the Executive has not exercised that power); AT&T Corp. v. Iowa
Utilities Bd., 119 S. Ct. 721 (1999) (Scalia, J.) (wiping out more
traditional state regulatory authority (local telephones) in one blow than
was protected by Lopez, Morrison, Printz, New York, and Seminole Tribe put
together). There are plenty of other examples. I have argued (see 1999 S.
Ct. Rev. 1) that the states' regulatory authority over private conduct
ought to be the central object of protection in any sensible federalism
jurisprudence, but that the present Court has largely neglected that value
in favor of state "dignity" and similar interests. It's frustrating.
At 12:35 PM 08/02/2000 -0400, you wrote:
>But does the Republican majority really want the federal government to do
less across the board. Consider, for example, federal tort reform, which
has very strong support from the mainstream of the Republican party & does
not quite fit. Indeed, as I understand it, it is one of George Bush's main
>I have not studied the Court's recent pre-emption decisions in detail, but
do they reflect a commitment to state power? Preemption rules are probably
as important as any decisions in protecting a role for the states. Of
course, many Republicans in Congress & in the state legislatures want the
courts to strike down the state campaign reform initiatives, state laws
that regulate ATM fees, state or city access rules, etc. Many like Ralph
Nader, the Progressive Populist newspaper, etc.are quite critical of broad
federal preemption power & of course of what seem in effect to be limits
on federal law making under WTO rules, etc.
>Of course, with the WTO, etc. these issues are reappearing on a global
scale, so the issue would be "national rights" to regulate sale of products
caught by means that endanger turtles, dolphins, or meat that contains
hormones, etc. When we teach commerce clause & dormant commerce clause
issues, should we be dealing with these global questions (about which I
know little)? If so, how should we do it?
>Mark Graber wrote:
>> One of the themes in this thread and in legal literature in general is
what George Lovell in a forthcoming piece in Studies in American Political
Development calls the "legislative baseline" interpretation of American
republicanism. On this view, statutes are by definition the best
expression of official public opinion. But as Lovell notes, legislative
drafting decisions are often influenced by the possibility, indeed
probability, that other officials ranging from police officers to
administrators to justices, will put their own glass on the statute.
Suppose, for example, as has frequently happened, a legislature both votes
for a statute and votes for expedited judicial review of the statute.
Should the court declare the measure unconstitutional, was the will of the
legislature thwarted or fulfilled?
>> Back to the Rehnquist Court. We have a republican party that declares
with a good deal of unanimity that states ought to do more and the federal
government ought to do less. They than unanimously fight for the appoint
of justices with that belief. The justices then sometimes strike down
federal statutes on that basis. Some Republicans, however, occassional
vote for statutes that seem inconsistent with their general committed to
more limited federal power, particularly when it is for something like
violence against women, which is hard to oppose. These legislators,
however, never say a word when their handiwork gets struck down and
continue to support justices with conservative notions of federalism.
>> My point is not that the authoritative expression of republic sentiment
is the judicial decisions or the legislative decisions, but that in this
circumstance there probably is no authoritative expression of republican
sentiment, and that is where historically the court has exercised the most
>> Mark A. Graber
>> mgraber at gvpt.umd.edu
Assistant Professor of Law
University of Texas School of Law
727 East Dean Keeton St.
Austin, TX 78705
eyoung at mail.law.utexas.edu
More information about the Conlawprof