On Garcia

[Michael McConnell]

Several people have speculated about the currect status of Garcia in
the Court's federalism doctrine. I think we need to separate two
questions:

(1) The reasoning/jurisprudence of Garcia: Garcia relied on the
Choper-like notion that there is no need for judicial policing of the
federal-state boundary because the states are adequately protected by
the political process. This, I think, has been thoroughly and
correctly rejected.

(2) The result of Garcia: Insofar as Garcia held that Congress has
the authority to regulate the commerical activity of states (e.g.,
participation as employers in the labor market), I think that is
correctly decided, and Reno v. Condon suggests that it is not
seriously in dispute. Usually, though not always (see Reno), the
general applicability of the law is a proxy for whether the state is
being regulated in its commerical capacity (permitted) or its
governmental capacity (forbidden).


-- Michael McConnell (U of Utah)