Future of federalism

[Tobias Barrington Wolff]

A textualist might find support for that assertion in the Third Amendment,
which embodies an "anti-commandeering" principle (of citizens, admittedly,
rather than States) that expressly yields "in time of war, . . . in a
manner to be prescribed by law."

At 03:51 PM 10/02/2001 -0500, you wrote:
>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
>Send reply to:          Discussion list for con law
>professors              <CONLAWPROF at LISTSERV.UCLA.EDU>
>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


* * *
Tobias Barrington Wolff
Assistant Professor of Law
U.C. Davis Law School
530-754-6981