The coming conservative showdown on state’s rights
The New York Times reports today that conservative lawmakers across the country are drafting state laws that directly challenge the primacy of federal law:
Whether it’s correctly called a movement, a backlash or political theater, state declarations of their rights — or in some cases denunciations of federal authority, amounting to the same thing — are on a roll.
Gov. Mike Rounds of South Dakota, a Republican, signed a bill into law on Friday declaring that the federal regulation of firearms is invalid if a weapon is made and used in South Dakota.
On Thursday, Wyoming’s governor, Dave Freudenthal, a Democrat, signed a similar bill for that state. The same day, Oklahoma’s House of Representatives approved a resolution that Oklahomans should be able to vote on a state constitutional amendment allowing them to opt out of the federal health care overhaul.
In Utah, lawmakers embraced states’ rights with a vengeance in the final days of the legislative session last week. One measure said Congress and the federal government could not carry out health care reform, not in Utah anyway, without approval of the Legislature. Another bill declared state authority to take federal lands under the eminent domain process. A resolution asserted the “inviolable sovereignty of the State of Utah under the Tenth Amendment to the Constitution.”
The flurry of new legislation seems to be stoked in part by the rise of the Tea Party movement, which has expressed anger at the reach and scope of the federal government under the Obama administration. However, I think this desire to push back is going to put conservative jurist in an uncomfortable position.
The conservative judges on the Supreme Court, led by Chief Justice John “balls and strikes” Roberts, have repeatedly stated their respect for precedent, even as they ignored it when they saw fit. The most recent example of the conservatives on the bench showing if not contempt, then certainly disregard, for precedent came in the Citizens United decision, in which the jurists found a heretofore undiscovered right of free speech for corporate entities, a right that had previously been reserved for people. Now, I’m not a legal scholar, but I’m fairly certain that the Constitution does not expressly address corporate personhood. If that’s true, then it seems a stretch for a collection of judges who claim to be strict constructionists, loathe to revisit settled law, to do so in such a sweeping fashion as they did in Citizens United (in which they overturned – in full or in part – two previous decisions on the matter). (It’s worth reading Jeffrey Toobin’s new profile of John Paul Stevens in the New Yorker for more on Citizens United)
What, you might say, does that have to do with these laws being passed by the state legislatures? Here’s another section from the Times piece:
Other scholars say the state efforts, if pursued in the courts, would face formidable roadblocks. Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and ’60s.
“Article 6 says that that federal law is supreme and that if there’s a conflict, federal law prevails,” said Prof. Ruthann Robson, who teaches constitutional law at the City University of New York School of Law. “It’s pretty difficult to imagine a way in which a state could prevail on many of these.”
And while some efforts do seem headed for a direct conflict with federal laws or the Constitution, others are premised on the idea that federal courts have misinterpreted the Constitution in the federal government’s favor.
So the potential now exists for the court to have to adjudicate a case in which the conservative wing will either have to choose between the word of the Constitution, which it generally views as inviolable, or show its sympathies to arguments seeking the reduction of federal control over various aspects of life. The latter choice would, of course, leave the conservatives open to that worst of judicial insults, as they would surely be called “activist judges” for overturning Article 6.
It may well be that none of the current laws being drafted and ratified in the states will come before the court, but should one make it, it’s going to very interesting to see how the court decides. Judicial Catch-22 anyone?
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Catch-22?
MP, I’m not sure the current situation sets up exactly the sort of catch-22 you’re positing. In fact, beginning with the Rehnquist courts of the late 70’s/early 80’s, the conservative justices have essentially defined themselves as “federalists”; that is, they’ve consistently favored the sovereignty of states (under the 10th Amendment) over the federal government. For example, someone like Justice Scalia isn’t necessarily against abortion (at least from a legal standpoint), but rather sees this as a state’s rights issue (because a right to abortion isn’t mentioned in the Constitution, like among the bill of rights) that shouldn’t (or can’t) be legislated by the federal government. Scalia has been willing to uphold state abortion laws not because he’s pro-life, but because there’s no guarantee to such a right in the Constitution, and thus state’s should be free to legislate in this area. (Of course, Scalia’s theories of substantive due process are another issue altogether…)
Citizens United involved invalidating a “federal” campaign finance law, which likely the (majority of the) Court had little trouble invalidating, at least on federalist grounds, because nothing in the Constitution expressly grants Congress the right to legislate in this area. And because federalists believe any right not expressly granted to the federal government by the Constitution is reserved only for the states, the constitutionality of a state’s law regulating corporate campaign contributions (within its own borders) might be resolved differently. One wonders if this perhaps might even lead to an equal protection challenge, which would open a whole other can of worms.
In fact, one writer analyzing the personhood of corporation in light of Citizens United has raised this very sort of question: “Going further, one might speculate whether it would be worth starting a lawsuit to test some of the restraints that states impose on corporations as conditions in their charters, in an effort to further liberate the corporate form. Or, perhaps, one might anticipate a lawsuit if, as is already being suggested in some quarters, that Congress might respond to the Citizens United ruling by passing a law to require corporations operating in interstate commerce to be federally chartered, and decreeing that, as such, they are not “persons” with constitutional rights.” (Lyle Denniston, http://www.scotusblog.com/2010/01/analysis-the-personhood-of-corporations/)
Of these two potential lawsuits mentioned above, the former might evoke the exact sort of catch-22 I think you’re talking about: whether the conservative/federalist member of the Court would be willing to elevate corporate personhood (which, as you noted, is a judicially-created legal fiction) and stare decisis over a state’s 10th Amendment rights. In this case, one might suspect that (at least) someone like Justice Thomas would likely side with the states.
Anyway, this is long-winded (and probably contains several legal inaccuracies), but I thought I’d chip in my two cents.
Craig,
In response to another comment. See in context »Your comments are much appreciated and thanks for the historical perspective. I’m a little shaky on some of the in’s and out’s of the court, so your thoughts on this are great to read.
Mr. Preston,
Judicial conservatives favor states rights when it serves their purposes to favor states rights. The classic case is Gore v. Bush. The State of Florida’s supreme court ordered a recount of the results of *Florida’s election*. What could be a clearer case of “state’s rights”, it is a state election by run by the Florida Secretary of State and under the jurisdiction of the Florida constitution. Yet the conservatives of the SCOTUS intervened and overturned the Florida supreme courts ruling, conveniently noting that its ruling was “limited to the present circumstances”.
So the conservative SCOTUS found no problem establishing federal supremacy in this case. However, as you noted, they are ready to ignore precedent when that suits their purposes as well.
I guess it depends on whether the issue at hand is medical marijuana (no states rights/DEA or open carry(“my” kind of states’ rights/NRA.)
And John Roberts makes Thurgood Marshal look like Clarence Thomas in the contect of judicial activism.