Future of federalism

[Glenn Reynolds]

I suspect that Congress's war powers would permit the
commandeering of local officials in ways that the commerce power
does not.  While I don't know of any case authority for this
proposition, it seems reasonable and I expect that the Court would
favor such a distinction.

Date sent:              Tue, 2 Oct 2001 14:13:34 -0500
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From:                   Sanford Levinson <SLevinson at MAIL.LAW.UTEXAS.EDU>
Subject:                Re: Future of federalism
To:                     CONLAWPROF at LISTSERV.UCLA.EDU

> Justice Scalia writes, in NY v. US, "Thee Federal Government may [not]
> command the State's officers . . . to administer or enforce a feeral
> regulatory program.  It matters not whethe rpolicymaking is involved, and
> no case-by-case weighing of the burdens of benefits is necessary; such
> commands are fundamentally incompatible with our constitutional system of
> dual sovereignty."
>
> This is the sentence that send me up the wall every time I read it.  As a
> matter of fact, I don't "oppose" federalism in principle--it's as American
> as apple pie-- and don't particularly mind Lopeez insofar as it tells
> Congress that it has to play by the relatively minimal rules of the game
> when passing legislation under the Commerce Clause.  (It is Morrison that I
> hate.)  I also agree that the New York city government has done a fine job,
> though I also note that they were quick to run to the feds for a massive
> tax-and-spend relief program, which, however merited, might not withstand,
> in all of its dimensions, the kind of Jeffersonian opposition to disaster
> relief in Savannah.  What I hate and detest (tell us what you really think,
> Sandy!) is the absolutism of Scalia's opinion (based, as it is, on his own
> political views rather than anything that can plausibly be found in the
> text), the pretense that even a "compelling state interest" (which is
> nothing more than a fancy name for balancing)would justify comandeering.
> Does anyone seriously believe that the Court will hold the line when our
> new Home Security Secretary, backed by Congress and a Republican President,
> conscripts local officials to help fight the federal war against terrorism?
>
> sandy


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