Greenhouse prediction

[John Noble]

There is some irony in pointing to the federal government's singular
abdication of its unambiguous authority (to regulate interstate and foreign
commerce) and unquestioned responsibility (to provide for the national
defense) in the area of airport security to argue for an expanded federal
role. Indeed, any attempt by Boston's political authorities to impose more
stringent security measures than have been dictated by the FAA, delegated
to the airlines, and sub-delegated to the Logan Airport operating
authority, would seem certain to fall to a field preemption claim.

More generally, I think it difficult to characterize the very slender
threads of state sovereignty that have been preserved by the Court as
evidence of a "neo-anti-Federalist contempt." It is hard to imagine that
the Commerce Clause authority might be less limited than it is, and still
be limited at all. It is still harder, I think, to discover "an exaggerated
esteem for local politicos" -- if you mean local as distinct from state
government -- in the Court's federalism decisions. The only decision I can
think of which reflects any regard at all for local government authority is
the Court's nod in acknowledgement of the standing of the municipal
plaintiffs in Romer.

It's interesting that the threat posed by terrorism, and the difficulty in
combatting it, is owed in large measure to its decentralized structure. The
al Qaeda, according to descriptions I've read, is a network of relatively
autonomous groups; and even the Taliban is comprised in part of dispersed
cells that are independently organized and operated without day-to-day
direction from a central authority. Yet our response is first to impose on
the terrorist organization a centralized authority by portraying it as "bin
Ladens' al Qaeda"; and then to worry that our defense is compromised by any
distribution of political authority in our own system. It strikes me as
worth noting that the political authority that by all accounts best
acquitted itself on 9/11 and in its aftermath is N.Y.'s municipal
government.

John Noble

At 11:31 AM -0500 10/1/01, Sanford Levinson wrote:
>As one of the people being lambasted (and accused of taking advantage of
>our national crisis to push my favorite issues), I will gladly defend the
>proposition that the at least some of the Court's aforays into federalism
>depend on a neo-anti-Federalist contempt for the national government and
>its leaders, coupled with an exaggerated esteem for local politicos.  I
>wonder what citizens of Boston think of their local political system in
>light of "security" at Logan provided by the political hacks who inhabit
>Massport.  We the People have been subjected to a relentless 20-year-long
>attack by the Republican Party on people who pursue careers with the
>federal government basically as chumps (when they should be making good
>money in the private sector) or power-mad ideologues seeking to impose
>their views on a virtuous local polity.  No doubt I exaggerate, but that's
>what polemics are about.  They're surely no worse than the pieces regularly
>published in the Wall Street Journal by esteemed members of the Federalist
>Society.
>
>September 11 didn't change the fact that people tend to spin events in line
>with their pre-existing views.  Is it any surprise that John Ashcroft isn't
>a big fan of civil liberties, or that liberal Democrats are trying to
>attach relief for people who are losing their jobs to the corporate welfare
>bailout of an airline industry that was in deep trouble prior to September
>11?  And so on.
>
>I confess that I find Ken Katkin's views quite odd insofar as he seems to
>be arguing that the Court should remain extra-stubborn in adhering to wrong
>views in order not to hand the terrorists a defeat.  It seems to me that we
>should be more Madisonian and Hamiltonian (my own opportunistic bow to
>originalism) and learn from experience rather than threaten to hold our
>breath until we turn blue.
>
>sandy levinson
>
>At 11:06 AM 10/01/2001 -0500, you wrote:
>>Yes, the whole thing seemed a bit opportunistic to me.  I think it
>>also conflates several different strands of federalism jurisprudence --
>> and makes the unstated, and almost certainly unwarranted,
>>assumption that we are in for a rerun of World War II.  The other
>>possibility is that we'll just panic -- which I think is no more
>>appropriate where federalism is concerned than where the Bill of
>>Rights is concerned.  I fear, however, that in promoting one such
>>response, the Greenhouse story may be laying the foundation for
>>other such responses.
>>
>>Here's what Stuart Buck says, on his interesting website at
>>http://stuartbuck.blogspot.com:
>>-----
>>[M]any of the Court's federalism precedents cannot possibly be
>>affected by the terrorist attacks. The Greenhouse article doesn't
>>even acknowledge that the Court's federalism jurisprudence has
>>several fronts -- the Commerce Clause, the 11th Amendment,
>>Section 5 of the Fourteenth Amendment. It might just barely
>>be plausible that Congress could prevent terrorism more effectively
>>if it could use its Commerce authority to commandeer the
>>operations of state governments (which was at issue in Printz, the
>>Brady bill case) or intrude on local police matters (like the
>>schoolhouse gun law at issue in Lopez). But it is not even remotely
>>plausible to think that Congress could combat terrorism by creating
>>private rights of action to sue state governments for disability
>>discrimination (at issue in Garrett) or patent infringement (College
>>Savings Board) or some such thing. And it is even  less plausible
>>to think that Congress's Section 5 authority to remedy state
>>constitutional violations (this was limited by Boerne v. Flores)
>>could play any role in preventing terrorist attacks. . . . the whole
>>Greenhouse piece seems like opportunism by people who oppose
>>federalism on all fronts, for reasons that have nothing to do with
>>terrorism.
>>-----
>>
>>Date sent:              Sun, 30 Sep 2001 13:47:36 -0500
>>Send reply to:          Discussion list for con law professors
> <CONLAWPROF at LISTSERV.UCLA.EDU>
>>From:                   Ann Althouse <althouse at FACSTAFF.WISC.EDU>
>>Subject:                Greenhouse prediction
>>To:                     CONLAWPROF at LISTSERV.UCLA.EDU
>>
>>> Listmembers may want to read Linda Greenhouse's piece in today's New York
>>> Times--"Will the Court Reassert National Authority?"--suggesting that the
>>> Rehnquist Court's new federalism will have to end as a result of recent
>>> events.
>>>
>>>
>http://www.nytimes.com/2001/09/30/weekinreview/30GREEN.html?searchpv=nytToday
>>>
>>> I find myself bristling at legal and political arguments that restate
>>> pre-September 11th positions and use the September 11th events to support
>>> those preexisting positions. I am disturbed if the events haven't changed
>>> people: it is not only the opportunistic use of the tragic events to
>>> advance an agenda that troubles me, I wonder about the judgment of anyone
>>> whose thinking is so calcified that they immediately propose whatever it is
>>> they were already proposing. Nevertheless, I think the future of the
>>> Court's efforts at enforcing federalism depends on people's deep background
>>> beliefs, which the events of September 11 have surely changed.
>>>
>>> So I'm of two minds with respect to the Greenhouse piece. On the one hand,
>>> it looks like another restatement of preexisting belief, as she has often
>>> railed against the Court's new federalism. On the other hand, I have to
>>> agree that the events will and should change how we assess the
>>> state-federal balance. We are seeing a powerful move toward national unity
>>> and a strong demonstration of belief that the national government is the
>>> place to look for solutions to problems.
>>>
>>> Most of the discussions about the effect of the September 11th events on
>>> constitutional law have been about whether there will be new restrictions
>>> on individual liberty and new tolerance for these restrictions. These
>>> discussions usually argue against changing to adapt to new conditions. The
>>> Greenhouse piece contains admonitions of this kind. Did she recognize that
>>> what she was saying about how federalism must change because of the events
>>> is the same logic that would say we need to sacrifice our liberties because
>>> of the events? Perhaps the idea is, because of the events, everything that
>>> I liked before must be scrupulously perserved and everything that I didn't
>>> like must be ended.
>>>
>>> Ann Althouse
>>> Arthur-Bascom Professor of Law
>>> University of Wisconsin
>>> Madison, Wisconsin 53706
>>
>>
>>Prof. Glenn Harlan Reynolds
>>College of Law, University of Tennessee
>>1505 W. Cumberland Ave., Knoxville, TN  37996-1810
>>
>>Attempt no more good than the people can bear.  --Thomas Jefferson
>>