National Association of Attorneys General
Federalism In The Roberts Court
One of the foremost legacies of the Rehnquist Court is its “Federalism Revolution.” During William Rehnquist’s tenure as chief justice, the U.S Supreme Court issued opinions limiting the United States’ powers under the Commerce Clause and § 5 of the 14th Amendment and expanding the states’ powers under the 10th and 11th Amendments.
As the third full term of the Roberts Court begins, it is timely to ask: Will there be a Roberts Court federalism revolution? And, if so, what direction will that revolution take? A review of the cases the Roberts court has already heard or has agreed to hear suggests that his court’s diet of federalism cases will be far different from his predecessor’s.
Since Chief Justice John Roberts Jr. has participated in the certiorari process, the Supreme Court has not agreed to hear a single case involving the constitutional federalism issues that formed the heart of the Rehnquist Court’s federalism revolution. Although the Supreme Court heard an 11th Amendment and a 14th Amendment case early in his tenure, both were on the Supreme Court’s argument calendar by the time Chief Justice Roberts joined the Supreme Court. Federalism cases in the Roberts Court have involved issues far different from the 10th, 11th and 14th Amendments, and Congress’ powers under the Commerce Clause. In the Roberts Court, the federalism battles have involved preemption and the dormant Commerce Clause.
Last term, the Supreme Court decided one preemption case and one dormant Commerce Clause case. This term, the Supreme Court has already agreed to hear three preemption cases and one dormant Commerce Clause case ― and the Supreme Court still has three more months of arguments to fill. At a time when state enforcement actions are routinely challenged as being either preempted or in violation of the dormant Commerce Clause, the Supreme Court could not have chosen issues more significant to state power. Indeed, there is every reason to conclude that preemption and dormant Commerce Clause cases are more important to the states than 10th, 11th and 14th Amendment cases.
To paraphrase a noted federalism scholar, which is more important to state regulatory authority: saving sheriffs the trouble of conducting background checks for gun purchases (a 10th Amendment issue) or having authority to regulate predatory lending by subsidiaries of national banks (a preemption issue)? The answer seems self-evident. State regulatory authority is far more affected by the preemption case than the 10th Amendment case.
Whether the Roberts Court will adopt a distinctive preemption and dormant Commerce Clause jurisprudence remains to be seen. Whereas the Rehnquist Court’s federalism cases were routinely decided by 5-4 votes, with the conservative block in the majority and the liberal block in dissent, preemption and dormant Commerce Clause cases do not break down so neatly. Preemption cases are, on one level, statutory construction cases. And justices’ reading of federal statutes often does not divide on ideological lines. The Supreme Court’s preemption jurisprudence has frequently been criticized for being ad hoc and unprincipled. Bringing order to this line of cases may be beyond even Chief Justice Roberts’ capable leadership.
The Supreme Court’s dormant Commerce Clause jurisprudence has also been frequently criticized for being incoherent. But in this area, Chief Justice Roberts has already made his mark. He wrote the majority opinion in last term’s dormant Commerce Clause case, United Haulers Ass’n v. Oneida‑Herkimer Solid Waste Management Authority, 127 S.Ct. 1786 (2007). In the course of upholding a local flow control ordinance that required all local waste to be processed at a designated, publicly-owned processing facility, the Supreme Court established a general rule that laws favoring state or local governments themselves do not run afoul of the dormant Commerce Clause. The Supreme Court then went a step further and stated:
There is a common thread to the [haulers’] arguments: They are invitations to rigorously scrutinize economic legislation passed under the auspices of the police power. There was a time when this Court presumed to make such binding judgments for society, under the guise of interpreting the Due Process Clause. See Lochner v. New York, 198 U.S. 45 (1905). We should not seek to reclaim that ground for judicial supremacy under the banner of the dormant Commerce Clause.
This language augers a significant narrowing of dormant Commerce Clause limitations on state actions, at least when states are not clearly discriminating in favor of local business.
The likelihood of there being a Roberts Court federal revolution depends, of course, on whether the chief justice strongly supports or opposes the principle of state sovereignty. The early indications are that he strongly supports the principle. His above-quoted opinion in United Haulers displays a striking deference to state prerogatives. And he joined Justice John Paul Stevens’ dissent in last term’s preemption decision, Watters v. Wachovia, 127 S. Ct. 1559 (2007) ― a dissent that argued, “when an agency purports to decide the scope of federal preemption, a healthy respect for state sovereignty calls for something less than Chevron deference.” (By contrast, Justice Samuel Alito, Jr. dissented in United Haulers and joined the majority in Watters. This represents the first notable dividing line between the jurisprudence of Chief Justice Roberts and Justice Alito.) As the new term unfolds, state attorneys interested in federalism would be well advised to keep a close eye on preemption and dormant Commerce Clause cases before the Supreme Court.
 The two cases were Central Virginia Community College v. Katz, 546 U.S. 356 (2006), holding that the States have no sovereign immunity from proceedings brought pursuant to the Bankruptcy Clause; and United States v. Georgia, 546 U.S. 151 (2006), holding that Title II of the Americans with Disabilities Act validly abrogates state sovereign immunity with respect to conduct that actually violates the 14th Amendment. Both were argued in the fall of 2005 and decided early in 2006, shortly before Justice O’Connor’s retirement.
 See Printz v. United States, 521 U.S. 98 (1997) (Tenth Amendment); Watters v. Wachovia, 127 S. Ct. 1559 (2007) (preemption). A variant of this comparison is set forth in Ernest A. Young, Two Cheers for Process Federalism, 46 Vill. L. Rev. 1349, 1385 (2001).