Federalism in the US

Read the attached article: RECONCEPTUALIZING FEDERALISM by Erwin Chemerinsky 

Cases: 

a. Geier v. American Honda Motor Co. 529. U.S. 861.

b. Lorillard Tobacco Co. v. Reilly. 533 U.S. 525 (2001).

c. Crosby v. National Foreign Trade Council. 530 U.S. 363.

d. American Insurance Association v. Garamendi. 539 U.S. 396 (2003)

1. Why does the author claim that these cases show that the Supreme Court goes against the defense of the power of the states?

2. a. Choose one of the 4 cases mentioned above in the list. Make a brief summary of the facts of the selected case. Analyze what the author of the article says about that case.

b. Explain how the author analyzes the case to affirm that it promotes the idea that  there is a presumption in favor of federal preemption.

c. Indicate, in your own words, why this presumption in favor of federal preemption goes against the public policy objectives promoted by the United States Constitution, according to the author.

d. Explain, in your own words, what is the author’s final proposal on the importance of  federalism in the courts.

***Assignment must be a minimum of 5 pages. ***

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RECONCEPTUALIZING FEDERALISM

ERWIN CHEMERINSKY*

I. INTRODUCTION

The federalism of the 1990s and the early 21st century — in
both the Supreme Court and Congress — has been about restrict-
ing federal authority for the sake of protecting states’ autonomy.
Ironically, at the same time, the Supreme Court often has inter-
preted preemption doctrines expansively in order to invalidate
state and local regulations. The effect has been to limit govern-
ment power at all levels. This article argues for an alternative vi-
sion: federalism should be reconceived as being about equipping
each level of government with expansive tools to enhance liberty
and deal with social problems.

The genius of having multiple levels of government is that
there are many different actors — federal, state, and local — that
can advance freedom and respond to society’s needs. Yet, the fed-
eralism decisions of the last decade have been striking in that the
Supreme Court has ignored these values and has been highly for-
malistic in its application of federalism principles in order to invali-
date desirable government actions.

In the 1990s, the Supreme Court used federalism as the justifi-
cation for declaring unconstitutional federal laws requiring the
clean-up of nuclear waste,1 prohibiting guns near schools,2 requir-
ing background checks for those seeking to own firearms,3 and al-
lowing victims of gender-motivated violence to sue in federal
court.4 All of these laws would unquestionably be socially benefi-
cial. Few in our society would argue against containing radioactive
material or keeping guns away from schools or argue in favor of
permitting criminals to have unrestricted access to firearms. Yet,
the Supreme Court’s rulings in each of these cases expressly ig-

* Alston & Bird Professor of Law and Political Science, Duke University.
1. See New York v. United States, 505 U.S. 144 (1992).
2. See United States v. Lopez, 514 U.S. 549 (1995).
3. See Printz v. United States 521 U.S. 898 (1997).
4. See United States v. Morrison, 529 U.S. 598 (2000).

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730 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

nored the social benefits of the laws and instead relied on a highly
formalistic approach to federalism as the basis for limiting federal
authority and striking down these statutes.

In the last few years, the Supreme Court also used federalism
to dramatically limit the scope of Congress’s powers to enforce the
post-Civil War Amendments, which authorize the federal govern-
ment to act to prevent and remedy civil rights violations by the
states.5 For example, the Court used federalism as the basis for in-
validating a federal law that significantly expanded religious free-
dom, the Religious Freedom Restoration Act.6 Although this Act
was adopted by an almost unanimous vote in both houses of Con-
gress,7 the Court declared it unconstitutional without even consid-
ering the benefit of the law in advancing a crucial aspect of liberty.8
Once more, the Court’s reasoning was highly formalistic, and feder-
alism was used entirely as a limit on federal power. Subsequently,
the Court relied on this decision to limit Congress’s power to au-
thorize lawsuits against state governments that infringe patents or
discriminate in employment based on age and disability.9

Ironically, at the same time, a Court that professes commit-
ment to states’ rights has repeatedly found that state laws are pre-
empted. For example, in one case, the Court found that a state’s
product liability law was preempted by a federal law, despite a provi-

5. See, e.g., Bd. of Trs. v. Garrett, 531 U.S. 356 (2001); Morrison, 529 U.S. at 627
(2000); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); City of Boerne v. Flores, 521
U.S. 507 (1997).

6. City of Boerne, 521 U.S. at 536 (invalidating the Religious Restoration Act of
1993, 42 U.S.C. § 2000bb (1994)).

7. 139 CONG. REC. H2356 (daily ed. May 11, 1993); 139 CONG. REC. S14461 (daily
ed. Oct. 27, 1993); 139 CONG. REC. H8713 (daily ed. Nov. 3, 1993).

8. City of Boerne, 521 U.S. at 536.
9. See Garrett, 531 U.S. at 374 (2001) (holding that state governments cannot be

sued for violating Title I of the Americans with Disabilities Act, which prohibits employ-
ment discrimination against the disabled); Kimel, 528 U.S. at 82–83 (2000) (holding
that state governments cannot be sued for violating the Age Discrimination in Employ-
ment Act because the law does not fit within the scope of Congress’s powers under
section five of the Fourteenth Amendment); Fla. Prepaid Postsecondary Educ. Expense
Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (declaring federal law authorizing suits
against states for patent violations unconstitutional because the Eleventh Amendment
bars such suits). But see Tennessee v. Lane, 541 U.S. 509 (2004) (holding that states
may be sued pursuant to Title II of the Americans with Disabilities Act); Nev. Dep’t of
Human Res. v. Hibbs, 538 U.S. 721 (2003) (allowing suits against states for violations of
the family leave provisions of the Family and Medical Leave Act).

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sion in the federal law that expressly preserved all other causes of
action.10 In another decision, the Court found that a state could
not refuse to contract with companies doing business in Burma,
thus denying to states a basic choice as to how to spend their tax-
payers’ money.11

This article argues for a very different approach to federalism.
In dealing with federalism, the Supreme Court’s decisions should
be based on open and express attention to, and where necessary a
balancing of, how to best advance liberty and enhance effective gov-
ernance. Generally, this will require the Court to abandon its use
of federalism as a judicial limit on federal or state authority and to
instead use it to uphold the power of each level of government to
deal with social problems.

In other words, what has been overlooked in scholarly federal-
ism discussions is that federalism is about the relationship between
the federal and state governments. Protecting the powers and pre-
rogatives of the federal government is every bit as much the proper
focus of federalism as is safeguarding states’ rights. Traditionally,
federalism has been a synonym for limiting federal power in the
name of upholding states’ rights. This article argues for a very dif-
ferent conception: empowering both the federal and state govern-
ments to be able to deal with important social problems.

Part II of this article briefly sketches the political and historical
context of the Supreme Court’s recent federalism decisions. Part
III then makes the point, which seems to have been consistently
overlooked, that the Supreme Court has limited Congress’s powers
by repeatedly declaring unquestionably desirable laws unconstitu-
tional without serving the values of federalism. Part IV argues that
the Supreme Court’s preemption decisions are in clear tension with
its rulings limiting federal power; and that a court that cares about
states’ rights should be narrowly interpreting the preemptive effects
of federal law. Finally, Part V describes an alternative vision: feder-
alism as empowering government to deal with social problems.

10. See Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000).
11. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000).

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732 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

II. THE POLITICAL AND HISTORICAL CONTEXT

No area of constitutional law has changed more dramatically in
the last decade than federalism. In 1995, for the first time in 60
years, the Supreme Court declared a federal law unconstitutional,
reasoning that it exceeded the scope of Congress’s Commerce
Clause power.12 For only the second and third times in 60 years,
the Court invalidated a federal law for violating the Tenth Amend-
ment,13 and the first of such Tenth Amendment cases has been ex-
pressly overruled.14 At the same time, the Court used federalism to
enlarge the states’ immunity to suit in federal court for violations of
federal statutes.15 These decisions have spawned literally hundreds
of lower court decisions concerning federalism and ensure that fed-
eralism will be a constant issue before the Supreme Court for years
to come. Although it is yet to be seen how far the Court will extend
these rulings, these cases signal a major change in constitutional
law and American government.16 There is no mistaking the Court’s
ardent desire to use federalism to limit the powers of Congress and
the federal courts.

At the same time, the Republican-controlled Congress of the
1990s often invoked federalism. Soon after the Republican tri-
umph in the 1994 elections, the new Congressional leaders, Bob
Dole and Newt Gingrich, held a press conference during which
they displayed a large poster board containing the words of the
Tenth Amendment and proclaimed a return to principles of feder-

12. See Lopez, 514 U.S. 549.
13. See Printz, 521 U.S. 898; New York, 505 U.S. 144.
14. See Nat’l League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528 (1985).
15. See, e.g., Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002)

(holding state governments cannot be sued in agency adjudication proceedings); Alden
v. Maine, 527 U.S. 706 (1999) (holding that state governments cannot be sued in state
court, even on federal claims, without their consent).

16. For example, in the last few years, the Court has not extended its earlier feder-
alism decisions limiting Congress’s power. See Gonzales v. Raich, 125 S. Ct. 2195 (2005)
(upholding the constitutionality of a federal law prohibiting cultivation and possession
of small amounts of marijuana for medicinal purposes); Sabri v. United States, 541 U.S.
600 (2004) (upholding as valid exercise of Congress’s spending power a federal law
making it a crime to bribe officials of local governments receiving federal funds).

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alism.17 In fact, one of the first laws adopted by the new Congress
was the “Unfunded Mandates Law,” which prohibits Congress from
enacting statutes that impose substantial costs on state and local
governments.18 Another recently enacted law with important feder-
alism implications is the Anti-terrorism and Effective Death Penalty
Act of 1996, which greatly restricts the ability of federal courts to
grant habeas corpus relief to those convicted in state courts.19

Not surprisingly, these changes have occurred at times when
conservatives were in control of both the Supreme Court and Con-
gress. The Supreme Court’s recent federalism rulings usually have
been decided by a 5-4 margin, with the majority comprised of the
five most conservative Justices: Chief Justice William Rehnquist and
Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy,
and Clarence Thomas.20 In Congress, of course, it also has been
the conservatives that have invoked federalism in a wide variety of
areas, such as in arguing for the radical changes in welfare law that
were ultimately enacted in 1996.21

Conservative use of federalism is nothing new in American his-
tory. Since the country’s earliest days, conservatives have used fed-
eralism as a political argument primarily in support of conservative
causes. During the early 19th century, John Calhoun argued that
states had independent sovereignty and could interpose their au-
thority between the federal government and the people to nullify
federal actions restricting slavery.22 During Reconstruction, South-

17. See CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH, REP.
DICK ARMEY, AND THE HOUSE REPUBLICANS TO CHANGE THE NATION (Ed Gillespie & Bob
Schelihas eds.,1994).

18. Unfunded Mandates Reform Act of 1995, 2 U.S.C. § 1501-1571 (2000).
19. Anti-terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.

1214 (1996) (codified in scattered sections of 8, 18, and 28 U.S.C.).
20. For example, Fed. Mar. Comm’n, 535 U.S. 743, Garrett, 531 U.S. 356, Kimel, 528

U.S. 62, Alden, 527 U.S. 706, Coll. Sav. Bank, 527 U.S. 627, Printz, 521 U.S. 898, Seminole
Tribe v. Florida, 517 U.S. 44 (1996), and Lopez, 514 U.S. 549, all have been 5-4 deci-
sions, with these Justices in the majority and Justices John Paul Stevens, David Souter,
Ruth Bader Ginsburg, and Stephen Breyer dissenting.

21. See The Personal Responsibility and Work Opportunity Reconciliation Act of
1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996) (codified in scattered sections of 7, 8,
21 and 42 U.S.C.).

22. See, e.g., SAMUEL H. BEER, TO MAKE A NATION: THE REDISCOVERY OF AMERICAN
FEDERALISM 224 (1993).

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734 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

ern states claimed that the federal military presence was incompati-
ble with state sovereignty and federalism.23

In the early 20th century, federalism was successfully used as
the basis for challenging federal laws regulating child labor, impos-
ing the minimum wage, and protecting consumers.24 During the
Great Depression, conservatives objected to President Franklin
Roosevelt’s proposals, such as Social Security, on the ground that
such schemes would usurp functions properly left to state
governments.25

During the 1950s and the 1960s, objections to federal civil
rights efforts were phrased primarily in terms of federalism.
Southerners challenged Supreme Court decisions mandating de-
segregation and objected to proposed federal civil rights legislation
by resurrecting the arguments of John Calhoun.26 Segregation and
discrimination were defended less on the grounds that they were
desirable practices, and more in terms of the states’ rights to choose
their own laws concerning race relations.27

In the 1980s, President Ronald Reagan proclaimed a “new fed-
eralism” as the basis for attempting to dismantle federal social wel-
fare programs.28 In his first presidential inaugural address,
President Reagan said that he sought to “[restore] the balance be-

23. For example, in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872), the
Supreme Court narrowly construed the Reconstruction era amendments, in part, based
on federalism considerations. Notably, the Court gave the “privileges or immunities
clause” an extremely narrow construction because of its belief that the provision was
not meant to alter federal-state relations. Id. at 78.

24. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936) (invalidating federal
regulation of employment, including a minimum wage); Hammer v. Dagenhart, 247
U.S. 251 (1918) (invalidating the federal regulation of child labor); United States v.
E.C. Knight, 156 U.S. 1 (1895) (holding that the Sherman Antitrust Act could not be
applied to businesses engaged in production).

25. See FORREST MCDONALD, A CONSTITUTIONAL HISTORY OF THE UNITED STATES
193 (1982); WILLIAM RAYMOND MANCHESTER, 1 THE GLORY AND THE DREAM: A NARRATIVE
HISTORY OF AMERICA, 1932 – 1972, 164-166 (1974).

26. BEER, supra note 22, at 19-20. R
27. See, e.g., Brief for Appellee at 3, Brown v. Bd. of Educ., 347 U.S. 483 (1954)

(No. 1) (arguing that race segregation falls within the province of state legislatures).
28. BEER, supra note 22, at 2.

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tween the various levels of government.”29 Federalism was thus em-
ployed as the basis for cutting back on countless federal programs.

Hindsight reveals that federalism has been primarily a con-
servative argument used to resist progressive federal efforts, espe-
cially in the areas of civil rights and social welfare. There is, of
course, nothing inherent to federalism that makes it conservative.
In the relatively recent past, prominent liberals, such as Justice Wil-
liam Brennan, have argued that there should be more use of state
constitutions to protect individual liberties.30 The federalism of the
1990s, however, like federalism throughout much of American his-
tory, has been mostly a tool employed by conservatives to champion
conservative goals.

More specifically, and more subtly, throughout American his-
tory, and especially in the 1990s, federalism has been used by con-
servatives as a way of trying to limit government power.31 In other
words, conservatives have used federalism as a procedural way of
blocking substantive reforms with which they disagree. During the
first third of the 20th century, a conservative Supreme Court used
federalism to limit Congress’s power and to strike down many fed-
eral laws. Since 1970, the conservative Burger and Rehnquist
Courts used federalism as a basis for limiting federal court jurisdic-
tion, especially in suits against state governments and in reviewing
state court decisions.

In the last decade, the Court again used federalism to limit
Congress’s powers by restricting the scope of the commerce power,
restricting authority under Section 5 of the Fourteenth Amend-
ment (Section 5), reviving the Tenth Amendment as a constraint
on federal authority, and greatly restricting Congress’s power to au-
thorize suits against state governments. In each instance, a con-
servative Court used federalism to invalidate progressive legislation
such as gun control efforts and the expansion of religious free-

29. President Ronald Reagan, First Presidential Inaugural Address, 1981 PUB. PA-
PERS 1 (Jan. 20, 1981), available at http://www.reaganfoundation.org/reagan/
speeches/first.asp.

30. William Brennan, State Constitutions and the Protection of Individual Rights, 90
HARV. L. REV. 489 (1977).

31. See, e.g., H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable
Federalism, 83 MINN. L. REV. 849, 921 (1999) (noting the conservatives’ use of
federalism).

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736 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

doms. Simultaneously, federalism was used by the conservative
Congress of the 1990s in a similar fashion, such as in greatly restrict-
ing prisoners’ access to federal court in both the Prison Litigation
Reform Act32 and the Anti-terrorism and Effective Death Penalty
Act.33 In sum, conservatives use federalism as a tool to limit the
power of the federal government, whether out of true concern for
protecting state governments or as a way of blocking federal actions
opposed on other grounds.

III. THE UNDESIRABLE NATURE OF THE SUPREME COURT’S
FEDERALISM DECISIONS LIMITING CONGRESSIONAL POWER

What is striking about the Supreme Court’s federalism deci-
sions of the last decade is that they have consistently invalidated
highly desirable social legislation without serving the underlying
goals of federalism. A brief review of some of the key decisions
reveals that applying federalism as a limit to Congress’s authority
has resulted in undesirable social policy.

In United States v. Lopez, the Supreme Court declared unconsti-
tutional the Gun Free School Zone Act, a federal law that made it a
crime to have a firearm within 1,000 feet of a school.34 Surely, no
one would argue that guns near schools are desirable. Although
the majority of states have such laws, some do not, and the federal
law was intended to extend this desirable law to all the states.

In United States v. Morrison, the Court followed Lopez and de-
clared unconstitutional the civil damages provision of the Violence
Against Women Act.35 The provision created a federal cause of ac-
tion for victims of gender-motivated violence.36 In enacting the Vi-
olence Against Women Act, Congress held lengthy hearings and
found that gender-motivated violence costs the American economy
billions of dollars a year.37 Most importantly, Congress found that

32. Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321
(1996) (codified as amended in scattered sections of 18, 28, and 42 U.S.C.).

33. Anti-terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214 (1996) (codified in scattered sections of 8, 18, and 28 U.S.C.).

34. 514 U.S. at 551.
35. 529 U.S. at 627.
36. Violence Against Women Act of 1994, 42 U.S.C. § 13981 (1994).
37. S. REP. No. 103-138, at 55 (1993).

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state courts often insufficiently dealt with violence against women.38
But the Supreme Court nonetheless invalidated the law.39 Again,
surely it is desirable to have an additional cause of action available
for violence against women to compensate victims and to deter gen-
der-motivated violence.

Another area in which the Court dramatically limited the
scope of Congress’s powers is in their authority to legislate under
Section 5. This provision empowers Congress to enact laws to en-
force the Fourteenth Amendment. In 1997, in City of Boerne v. Flo-
res, the Court significantly restricted this power by holding that
Congress may not use its Section 5 powers to expand the scope of
rights or to create new rights.40

In City of Boerne, the Supreme Court, in a 6-3 decision, declared
the Religious Freedom Restoration Act (RFRA) unconstitutional as
exceeding the scope of Congress’s Section 5 powers.41 The RFRA
was adopted in 1993 to overturn a recent Supreme Court decision
that had narrowly interpreted the free exercise clause of the First
Amendment.42

In enacting the RFRA, Congress sought to overturn the 1990
Supreme Court case, Employment Division, Department of Human Re-
sources of Oregon v. Smith.43 In Smith, the Supreme Court signifi-
cantly lessened the protections of the free exercise clause.44 Smith
involved the constitutionality of an Oregon law that prohibited the
consumption of peyote, a hallucinogenic substance.45 Native Amer-
icans challenged this law claiming that it infringed on the free exer-
cise of religion because their religious rituals required the use of
peyote.46 Under prior Supreme Court precedent, government ac-
tions burdening religion were upheld only if they were necessary to
achieve a compelling government purpose.47 The Supreme Court,
in Smith, departed from precedent and held that the free exercise

38. Id.
39. Morrison, 529 U.S. at 627.
40. 521 U.S. at 527.
41. Id. at 536.
42. Religious Freedom and Restoration Act, 42 U.S.C. § 2000bb (1994).
43. 494 U.S. 872 (1990).
44. Id. at 890.
45. Id. at 874.
46. Id.
47. See, e.g., Sherbert v. Verner, 374 U.S. 398, 403 (1963).

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738 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

clause cannot be used to challenge neutral laws of general applica-
bility.48 The Court deemed the Oregon law prohibiting consump-
tion of peyote neutral because the legislature was not motivated by
a desire to interfere with religion and the law was of general appli-
cability, because it applied to everyone.49

In response to this decision, in 1993, Congress overwhelmingly
adopted the RFRA, which was signed into law by President Clin-
ton.50 The RFRA expressly stated that its purpose was to overturn
Smith and restore the test that was applied before that decision.51
The RFRA required courts considering free exercise challenges, in-
cluding challenges to neutral laws of general applicability, to up-
hold the government’s actions only if they are necessary to achieve
a compelling purpose.52

In City of Boerne, the Supreme Court held that the RFRA was
unconstitutional.53 The Court held that under Section 5 Congress
may not create new rights or expand the scope of rights; rather,
Congress is limited to enacting laws that prevent or remedy viola-
tions of rights recognized by the Supreme Court and that such laws
must be narrowly tailored — “proportionate” and “congruent” —
to the constitutional violation.54

A statute expanding religion freedom — restoring protections
to what they were before 1990 — was thus invalidated. The result
of Boerne is that people in the United States have far less protection
for their religious practices. Laws of general applicability —
whether prison regulations or zoning ordinances or historical
landmark laws — that seriously burden the free exercise of religion
might have been successfully challenged under RFRA, but cannot
be any longer. Put most simply, Boerne means that many claims of
free exercise of religion that previously would have prevailed, now

48. Smith, 494 U.S. 884-86.
49. Id. at 882.
50. 139 CONG. REC. D1201-02 (1993) (showing 97 yeas to 3 nays in the Senate);

140 CONG. REC. H80-01 (1994) (reporting of Executive signature of RFRA into law).
51. 42 U.S.C. § 2000bb(a) (1994).
52. 42 U.S.C. § 2000bb(b) (1994).
53. City of Boerne, 521 U.S. at 536 (“RFRA contradicts vital principles necessary to

maintain separation of powers and the federal balance.”).
54. Id. at 520 (“There must be a congruence and proportionality between the

injury to be prevented or remedied and the means adopted to that end.”).

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certainly will lose. People in the United States have less protection
of their rights after Boerne than they did before it.

Another aspect of the Rehnquist Court’s federalism revival was
its use of the Tenth Amendment as a limit on federal power. In the
first third of the 20th century, the Supreme Court held that the
Tenth Amendment reserves a zone of activities for exclusive state
control.55 In Hammer v. Dagenhart, for example, the Court struck
down a federal law prohibiting child labor on the ground that it
violated the Tenth Amendment.56 After 1937, however, the Court
rejected this view and no longer was the Tenth Amendment seen as
a limit on federal power; it was just a reminder that Congress could
not act unless there was express or implied constitutional
authority.57

Professor Laurence Tribe remarked that “[f]or almost four de-
cades after 1937, the conventional wisdom was that federalism in
general — and the rights of states in particular — provided no judi-
cially enforceable limits on congressional power.”58 In 1976, the
Court appeared to revive federalism as a limit on Congressional
powers in National League of Cities v. Usery, in which the Court invali-
dated a federal law that required state and local governments to pay
their employees a minimum wage.59 In an opinion by then Justice
Rehnquist, the Court held that Congress could not regulate states
in areas of “traditional” or “integral” state responsibility.60 But just
nine years later, in Garcia v. San Antonio Metropolitan Transit Author-
ity, the Court expressly overruled National League of Cities.61 Justice
Rehnquist, in a short dissent, said that he believed that his view
would again triumph on the Court.62

55. See Hammer, 247 U.S. at 274 (“The grant of authority over a purely federal
matter was not intended to destroy the local power always existing and carefully re-
served to that States in the Tenth Amendment to the Constitution.”).

56. Id. at 276 (“[The act] not only transcends the authority delegated to Congress
over commerce but also exerts a power as to a purely local matter to which federal
authority does not extend.”).

57. United States v. Darby, 312 U.S. 100, 116-17 (1941) (overruling Hammer v.
Dagenhart and reasoning that it was a departure from the prevailing interpretation of
the Commerce Clause).

58. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 378 (2d ed. 1987).
59. 426 U.S. 833.
60. Id. at 852.
61. 469 U.S. 528, 531.
62. Id. at 579–80.

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740 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

Subsequently, the Rehnquist Court did just that and revived
the Tenth Amendment as a constraint on Congress’s authority. In
New York v. United States, the Court — for only the second time in 55
years and the first since the overruled National League of Cities deci-
sion — invalidated a federal law as violating the Tenth Amend-
ment.63 The federal law at issue was the Low-Level Radioactive
Waste Policy Amendments Act of 1985 (LRWPAA), which created a
statutory duty for states to provide for the safe disposal of radioac-
tive waste generated within their borders.64 The LRWPAA provided
monetary incentives for states to comply with the law and allowed
states to impose a surcharge on radioactive waste received from
other states.65 Additionally, and most controversially, to ensure ef-
fective state government action, the law provided that states would
“take title” to any waste within their borders that were not properly
disposed of by January 1, 1996 and then would “be liable for all
damages directly or indirectly incurred.”66

In New York, the Supreme Court ruled that pursuant to its au-
thority under the Commerce Clause, Congress could regulate the
disposal of radioactive waste.67 However, by a 6-3 margin, the Court
held that the “take title” provision of the law was unconstitutional
because it gave state governments the choice between “either ac-
cepting ownership of waste or regulating according to the instruc-
tions of Congress.”68 Justice O’Connor, writing for the Court,
stated that it was impermissible for Congress to impose either op-
tion on the states.69 Forcing states to accept ownership of radioac-
tive waste would impermissibly “commandeer” state governments,
and requiring state compliance with federal regulatory statutes
would impermissibly require states to implement federal legisla-
tion.70 The Court concluded that it was “clear” that because of the

63. 505 U.S. 144.
64. Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 U. S. C.

§§ 2021b–2021j (2000).
65. See id.
66. Id. at 42 U.S.C. § 2021e(d)(2)(C).
67. See New York, 505 U.S. at 159-60.
68. Id. at 175-77.
69. Id.
70. Id.

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Tenth Amendment, “[t]he Federal Government may not compel
the States to enact or administer a federal regulatory program.”71

Again, surely it is desirable to clean up nuclear waste. The fed-
eral law reflected a widespread sense of a serious problem and was
the product of a proposal made by the National Conference of Gov-
ernors.72 The Court stated that allowing the federal government to
commandeer state governments would undermine accountability,73

but voters certainly could understand that there are times when
state governments were acting because of a federal mandate.

A few years later, in Printz v. United States, the Court applied
and extended New York v. United States.74 Printz involved a challenge
to the federal Brady Handgun Violence Prevention Act (Brady
Act).75 The Brady Act required that the “chief law enforcement of-
ficer” of each local jurisdiction conduct background checks on per-
mit applicants before issuing permits for firearms.76 In a 5-4
decision, the Court found that the Brady Act violated the Tenth
Amendment.77 Once more, from the perspective of social desirabil-
ity, can there be any doubt that it is desirable to have background
checks before issuing permits for guns?

Another key change in the law from the Rehnquist Court is the
Supreme Court’s significant expansion in the scope of state sover-
eign immunity. In Alden v. Maine, the Court held that because of
state sovereign immunity a state government may not be sued in
state court without its consent, even on a federal claim.78 Alden in-
volved a claim by probation officers in Maine that they were owed
overtime pay under the federal Fair Labor Standards Act.79 They
sued in federal court, but their suit was dismissed based on the Elev-

71. Id. at 188.
72. H.R. Rep. No. 99-314(I), at 14 (1985).
73. New York, 505 U.S. at 169.
74. Printz, 521 U.S. 898.
75. Id. at 902.
76. Brady Handgun Violence Protection Act, Pub. L. No. 103-159, 107 Stat. 1536

(codified in scattered sections of 18 U.S.C.).
77. Printz, 521 U.S. at 935.
78. 527 U.S. 706.
79. Id. at 711.

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742 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

enth Amendment.80 The officers then sued in state court.81 The
Supreme Court, however, in a 5-4 decision, held that sovereign im-
munity broadly protects state governments and precludes suits
against non-consenting states in state courts.82

Additionally, in a series of recent cases, the Court has greatly
limited the ability of Congress to authorize suits against state gov-
ernments in federal courts. In 1996, in Seminole Tribe of Florida v.
Florida, the conservative majority of the Court held that Congress
may authorize suits against states only through laws enacted pursu-
ant to its enforcement power under Section 5.83 As described
above, in 1997, in City of Boerne, the Court limited Congress’s Sec-
tion 5 powers to preventing or remedying violations of rights recog-
nized by the Supreme Court, reasoning that Congress cannot
expand the scope of rights or create new rights.84

The combination of Seminole Tribe and City of Boerne already has
had a devastating effect on many types of claims. In Florida Prepaid
Postsecondary Education Expense Board v. College Savings Bank, in 1999,
the Court held that state governments cannot be sued for patent
infringement.85 In Kimel v. Florida Board of Regents, the Court de-
cided that state governments may not be sued for violating the Age
Discrimination in Employment Act.86 In Board of Trustees of the Uni-
versity of Alabama v. Garrett, the Court ruled that state governments
may not be sued for employment discrimination in violation of sec-
tion one of the Americans with Disabilities Act.87 Each case was a 5-
4 decision, and in each case, the Court concluded that Congress
was expanding the scope of rights, and that the laws could not be
justified as narrowly tailored to preventing or remedying constitu-
tional violations.88

80. Id. at 711-12 (applying the principal set out in Seminole Tribe, 517 U.S. 44, that
the eleventh Amendment prevents Congressional authorization of private suits against
non-consenting states in federal court).

81. Id.
82. Id.
83. 517 U.S. at 74-77.
84. See supra text accompanying notes 42-56.
85. 527 U.S. at 630.
86. 528 U.S. at 66-67.
87. 531 U.S. at 360.
88. However, in Hibbs, 536 U.S. 721, the Court allowed suits against the states for

violations of the family leave provisions of the Family and Medical Leave Act. And in

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These decisions mean that state governments cannot be sued
when they violate federal law. How can the supremacy of federal
law be assured and vindicated if states can violate the Constitution
or federal laws and not be held accountable?

At oral argument in Alden, the Solicitor General of the United
States, Seth Waxman, quoted to the Court from the Supremacy
Clause of Article VI and contended that suits against states are es-
sential to assure the supremacy of federal law.89 Justice Kennedy’s
response to this argument was astounding. He stated:

The constitutional privilege of a State to assert its sover-
eign immunity in its own courts does not confer upon the
State a concomitant right to disregard the Constitution or
valid federal law. The States and their officers are bound
by obligations imposed by the Constitution and by federal
statutes that comport with the constitutional design. We
are unwilling to assume the States will refuse to honor the
Constitution or obey the binding laws of the United
States. The good faith of the States thus provides an im-
portant assurance that “[t]his Constitution, and the Laws
of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land.”90

What, then, is the assurance that state governments will comply
with federal law? Trust in the good faith of state governments? Is it
possible to imagine that thirty or forty years ago, at the height of
the civil rights movement, the Supreme Court would have issued
such a statement that state governments simply could be trusted to
voluntarily comply with federal law? Justice Kennedy’s words in Al-
den reflect the Rehnquist Court’s strong faith in state governments
and desire to limit both federal legislative and judicial power.

Sovereign immunity is an anachronistic relic. The principle of
sovereign immunity is derived from English law, which assumed

Lane, 541 U.S. 509, the Court held that states may be sued pursuant to Title II of the
Americans with Disabilities Act for discriminating against people with disabilities with
regard to access to the courts.

89. Transcript of Oral Argument at 12-13, Alden, 531 U.S. 706 (No. 98-436).
90. Alden, 521 U.S. at 754 (quoting U.S. CONST. art. VI).

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744 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

that “the King can do no wrong.”91 A doctrine derived from the
premise, “the King can do no wrong,” deserves no place in Ameri-
can law. The United States was founded on a rejection of a monar-
chy and of royal prerogatives.92 American government is based on
the fundamental recognition that the government and government
officials can do wrong and must be held accountable.93 Sovereign
immunity undermines that basic notion.

The doctrine of sovereign immunity is inconsistent with the
United States Constitution. Nowhere does the document mention
or even imply that governments have complete immunity to suit.
Sovereign immunity is a doctrine based on a common law principle
borrowed from the English common law. However, Article VI of
the Constitution states that the Constitution and laws made pursu-
ant to it are the supreme law and, as such, they should prevail over
claims of sovereign immunity.94 Yet, sovereign immunity, a com-
mon law doctrine, trumps even the United States Constitution and
bars suits against government entities for relief when they violate
the Constitution and federal laws.

Sovereign immunity is inconsistent with a central maxim of
American government: that no one, not even the government, is
above the law. The effect of sovereign immunity is to place the gov-
ernment above the law and to ensure that some individuals who
have suffered egregious harms will be unable to receive redress for
their injuries.95 The judicial role of enforcing and upholding the
Constitution is rendered illusory when the government has com-
plete immunity to suit. Moreover, sovereign immunity undermines
the basic principle, announced in Marbury v. Madison, that “[t]he

91. See 5 KENNETH DAVIS, ADMINISTRATIVE LAW TREATISE 6-7 (2d ed. 1984) (quot-
ing Blackstone); 2 CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE 210 (1st
ed. 1985).

92. See U.S. CONST. art. I, § 9, cl. 8 (“No title of nobility shall be granted by the
United States.”).

93. See generally Erwin Chemerinsky, Against Sovereign Immunity, 53 STAN. L. REV.
1201, 1213 (2001) (presenting interpretations of the Constitution and early case law
that support the tenet that the government was formed with the intent that it would be
held accountable to the people).

94. U.S. CONST. art. IV, § 2.
95. John E. H. Sherry, The Myth That the King Can Do No Wrong: A Comparative Study

of the Sovereign Immunity Doctrine in the United States and New York Courts of Claims, 22
ADMIN. L. REV. 39, 57-58 (1969).

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very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws, whenever he receives
an injury.”96

Finally, it is striking that the Court’s use of federalism as a limit
on government power has little to do with the values that it has
identified as being served by federalism.97 The values traditionally
invoked to justify federalism — states are closer to the people, states
serve as a barrier to tyranny by the federal government, states are
laboratories for experimentation — have virtually nothing to do
with the Court’s decisions and, on reflection, are of little use in
constitutional decisionmaking. For example, it is difficult to see
how preventing Congress from requiring states to clean up their
nuclear waste lessens the likelihood of government tyranny or en-
hances desirable experimentation. Nor do the decisions striking
down laws expanding liberties — such as the Violence Against
Women Act or the Religious Freedom Restoration Act — lessen the
likelihood of tyranny or encourage desirable state experimentation.
The frequently mentioned values of federalism are little more than
slogans invoked to explain the benefits of having multiple levels of
government. They have virtually no relationship to any of the
Court’s federalism decisions.

Moreover, these values, and the Court’s use of them, focus on
only part of federalism: protecting state governments. Although
the phrase “dual sovereignty” always has been invoked as a basis for
protecting the states, the other half of “dual” is the federal govern-
ment and its interests under the Constitution. Federalism also con-
cerns safeguarding the federal government and the supremacy of
federal law. Yet, the federalism decisions of the 1990s have given
no weight, or even mention, to this consideration. For example, in
expanding the Eleventh Amendment’s bar on federal court juris-
diction, the Court did not even discuss whether this jeopardizes the
successful enforcement and implementation of federal laws.

96. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
97. See Evan Caminker, Printz, State Sovereignty and the Limits of Formalism, 1997

SUP. CT. REV. 199, for an excellent argument that the Supreme Court’s federalism deci-
sion in Printz v. United States was highly formalistic.

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746 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

IV. PRESUMPTION IN FAVOR OF PREEMPTION?

One would expect that a court concerned with federalism and
states’ rights also would narrow the scope of federal preemption of
state laws. Narrowing the circumstances of federal preemption
leaves more room for state and local governments to act. Quite the
opposite, though, over the last several years, the Supreme Court
repeatedly found preemption of important state laws, even when
federal law was silent about preemption or explicitly preserved state
laws.

The Supreme Court has correctly stated that concerns about
federalism and state authority justify a presumption against pre-
emption.98 The Court has observed: “Congress . . . should manifest
its intention [to preempt state and local laws] clearly. . . . The exer-
cise of federal supremacy is not lightly to be presumed.”99 Re-
cently, the Court emphasized that states “are independent
sovereigns in our federal system” and, therefore, there is a pre-
sumption against finding preemption.100

The Supreme Court’s recent preemption decisions are striking
because they are so at odds with deference to the states. To illus-
trate, this article briefly describes several recent cases and how they
put the presumption in favor of preemption.

A. Geier v. American Honda Motor Co.101

Alexis Geier drove a 1987 model Honda Accord.102 In 1992,
Geier was seriously injured when the car crashed into a tree.103 She
sued on grounds that the absence of airbags was a design defect
that was responsible for her injuries.104 The defendant argued that
Geier’s suit was preempted by federal law because it built the car in
compliance with federal safety requirements.105 The Department
of Transportation had promulgated rules governing the safety re-
straint systems of 1987 automobiles pursuant to the National Traffic

98. See N.Y. State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405 (1973).
99. Id. at 413 (citation omitted).

100. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1986).
101. 529 U.S. 861.
102. Id. at 865.
103. Id.
104. Id.
105. Id.

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and Motor Vehicle Safety Act.106 One of these regulations required
that cars have passive restraint systems and gave manufacturers
three choices; one was airbags, another was the lap and shoulder
belts that were in Geier’s car.107

The problem with the National Traffic and Motor Vehicle
Safety Act — which was the basis for the Department of Transporta-
tion regulations — is that it had a savings clause stating that noth-
ing within the law was meant to preempt any other cause of action
that might exist.108 The law expressly stated that “[c]ompliance
with” a federal safety standard does “not exempt any person from
any liability under the common law.”109 Geier argued that this pro-
vision prevented a finding of federal preemption.110

The Supreme Court rejected Geier’s argument and found fed-
eral preemption notwithstanding the savings clause.111 Justice
Breyer, writing for the majority, said that this was not a situation of
express preemption, but instead one of conflicts preemption.112 Al-
lowing state liability for cars made in compliance with the federal
safety standard was deemed to conflict with the federal law.113 Jus-
tice Breyer stated that the savings clause did not foreclose preemp-
tion because there was no indication that Congress wanted to
permit lawsuits when cars were made in compliance with the De-
partment of Transportation’s safety regulations.114

The only way to make sense of the case is to see it as putting a
presumption in favor of preemption.115 The federal statute ex-
pressly said that it did not preempt state law tort suits.116 There was
no conflict between allowing Geier to sue and any provision of fed-

106. The rule promulgated under the Traffic and Motor Vehicle Safety Act at issue
in Geier was Federal Motor Vehicle Safety Standard 208, 49 CFR § 571.208 (1984).

107. Id.
108. 15 U.S.C. § 1397(k) (1988) (repealed 1994).
109. Id.
110. Geier, 529 U.S. at 867.
111. Id. at 885.
112. Id. at 869-870.
113. Id. at 867.
114. Id. at 869.
115. The dissent by Justice Stevens forcefully makes this point. See 529 U.S. at 907

(Stevens, J., dissenting); see also, Susan Raeker-Jordan, A Study in Judicial Sleight of Hand:
Did Geier v. American Honda Motor Co. Eradicate the Presumption Against Preemption, 17 BYU
J. PUB. L. 1 (2002).

116. 15 U.S.C. § 1397(k) (1988) (repealed 1994).

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748 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

eral law. Yet, the Court nonetheless ruled in favor Honda and
deemed a state tort action to be preempted.117

B. Lorillard Tobacco Co. v. Reilly118

In Lorillard, the Court invalidated a Massachusetts law that pro-
hibited outdoor advertising for cigarettes, such as billboards, within
1,000 feet of a playground or school.119 The Supreme Court relied
on the language of a federal law adopted in 1969, the Federal Ciga-
rette Labeling and Advertising Act (FCLAA), that proscribes any
“requirement or prohibition based on smoking and health . . . im-
posed under State law with respect to the advertising or promotion”
of cigarettes.120 The Court reviewed the history of federal regula-
tion of cigarette advertising and concluded:

In the 1969 amendments, Congress not only enhanced its
scheme to warn the public about the hazards of cigarette
smoking, but also sought to protect the public, including
youth, from being inundated with images of cigarette
smoking in advertising. In pursuit of the latter goal, Con-
gress banned electronic media advertising of cigarettes.
And to the extent that Congress contemplated additional
targeted regulation of cigarette advertising, it vested that
authority in the FTC.121

Justice Stevens, in a dissenting opinion, argued that the state law
was not preempted because it regulated the location and not the
content of cigarette advertisements.122 The majority, however, re-
jected this distinction and declared:

But the content/location distinction cannot be squared
with the language of the pre-emption provision, which
reaches all “requirements” and “prohibitions” “imposed

117. Geier, 529 U.S. at 886.
118. 533 U.S. 525 (2001).
119. Id. The Court found that the Massachusetts law was preempted in its regula-

tion of advertising of cigarettes. Id. at 571. As for the regulation of advertising of cigars
and smokeless tobacco, which are not the subject of federal regulation, the Court found
that the law violated the First Amendment. Id. at 567.

120. Id. at 537 (quoting the Federal Cigarette Labeling and Advertising Act, 15
U.S.C. § 1334(b) (2000)).

121. Id. at 547-48.
122. Id. at 592-94 (Stevens, J., dissenting).

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under State law.” A distinction between the content of
advertising and the location of advertising in the FCLAA
also cannot be reconciled with Congress’ own location-
based restriction, which bans advertising in electronic me-
dia, but not elsewhere.123

Again, this case can be understood only if it is seen as putting a
presumption in favor of preemption.124 The federal law was de-
signed to limit cigarette advertising so as to protect children. The
federal preemption provision was meant to keep states from adopt-
ing conflicting requirements for warning labels on cigarette pack-
ages. There is nothing in the law that says or implies that any
regulation of cigarette advertising is preempted by federal law. In-
deed, the Massachusetts law advances the goals of the federal stat-
ute by protecting children from tobacco ads. The federal statute
has nothing to do with whether there can be billboards near
schools or whether ads in stores need to be a certain level above the
floor. These, as the dissent points out, go entirely to placement, an
issue not addressed by the federal law. Nonetheless, the Court pro-
tected the tobacco industry and invalidated the Massachusetts
statute.

C. Crosby v. National Foreign Trade Council125

Massachusetts adopted a law which prohibited the state and its
agencies from purchasing goods or services from companies that do
business with Burma (Myanmar).126 The state adopted this law be-
cause of human rights violations in that nation.127 The Supreme
Court unanimously found that the state law was preempted by fed-
eral law.128 Justice Souter, writing for the Court, explained that
Congress had enacted a sanctions law against Burma and found
that this preempted states from imposing their own sanctions.129

123. Id. at 548-49.
124. This article’s focus here is only the preemption issue and not whether the

Massachusetts law violated the First Amendment.
125. 530 U.S. 363.
126. Id. at 366.
127. See id. at 368.
128. Id. at 366.
129. Id. at 368-369, 373-74, 388.

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750 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

Justice Souter rejected the State’s argument that its policy fur-
thered the federal objective of imposing sanctions on a nation that
violated basic norms of human rights. Justice Souter wrote: “The
conflicts are not rendered irrelevant by the State’s argument that
there is no real conflict between the statutes because they share the
same goals and because some companies may comply with both sets
of restrictions. The fact of a common end hardly neutralizes con-
flicting means.”130

Justice Souter said that the existence of the state law

undermines the President’s capacity . . . for effective di-
plomacy. It is not merely that the differences between the
state and federal Acts in scope and type of sanctions
threaten to complicate discussions; they compromise the
very capacity of the President to speak for the nation with
one voice in dealing with other governments.131

The decision, though unanimous, again must be seen as put-
ting a presumption in favor of preemption. Congress had not ex-
pressed or implied any intent to preempt states from imposing
sanctions, and the state law was not inconsistent with the federal
law. There was no conflict between the Massachusetts law and ac-
tions taken by the President. The state was simply choosing how it
would spend its taxpayers money and with whom it would do busi-
ness. Many state and local governments adopted similar laws refus-
ing to contract with companies doing business in South Africa at
the time of apartheid.132 Nonetheless, the Court found
preemption.

D. American Insurance Association v. Garamendi133

California’s Holocaust Victim Insurance Relief Act of 1999
(HVIRA) required “any insurer doing business in that State to dis-
close information about all policies sold in Europe between 1920

130. Id. at 379 (citations omitted).
131. Id. at 381.
132. Id. at 387. See generally David D. Caron, Panel: Cities, States, and Foreign Affairs:

The Massachusetts Burma Case and Beyond: The Structure and Pathologies of Local Selective
Procurement Ordinances: A Study of the Apartheid-Era South Africa Ordinances, 21 BERKELEY J.
INT’L. L. 159 (2003) (discussing legislative action taken by cities and counties in the
United States as indirect sanctions against the South African apartheid regime).

133. 539 U.S. 396 (2003).

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and 1945 by the company.”134 As Justice Ginsburg noted in her
dissent:

For insurance policies issued in Germany and other coun-
tries under Nazi control, historical evidence bears out, the
combined forces of the German Government and the in-
surance industry engaged in larcenous takings of gigantic
proportions. For example, insurance policies covered
many of the Jewish homes and businesses destroyed in the
state-sponsored pogrom known as Kristallnacht. By order
of the Nazi regime, claims arising out of the officially ena-
bled destruction were made payable not to the insured
parties, but to the State. In what one historian called a
“charade concocted by insurers and ministerial officials,”
insurers satisfied property loss claims by paying the State
only a fraction of their full value.135

Despite some efforts by the federal government, insurance
companies had been largely successful in stonewalling and not dis-
closing their Holocaust-era policies.136 To remedy this, and to pro-
tect its many residents who are Holocaust survivors or their
descendants, California enacted a law which declared that
“[i]nsurance companies doing business in the State of California
have a responsibility to ensure that any involvement they or their
related companies may have had with insurance policies of Holo-
caust victims [is] disclosed to the state. . . .”137 HVIRA required
insurance companies doing business in California to disclose infor-
mation concerning insurance policies they or their affiliates sold in
Europe between 1920 and 1945, and directed California’s Insur-
ance Commissioner to store the information in a publicly accessible
“Holocaust Era Insurance Registry.”138 The Commissioner was fur-
ther directed to suspend the license of any insurer that failed to
comply with HVIRA’s reporting requirements.139 These measures,

134. Id. at 401 (citations omitted).
135. Id. at 430-31 (Ginsburg, J., dissenting) (citations omitted).
136. See generally Alicia Appleman-Jurman & Bernard Caron, The Claimants Speak:

Insurance Claims of Holocaust Victims and Their Heirs, 20 WHITTIER L. REV. 61 (1998) (dis-
cussing attempts to recover Nazi assets).

137. CAL. INS. CODE § 13801(e) (1999).
138. CAL. INS. CODE § 13803 (1999).
139. CAL. INS. CODE § 13806 (1999).

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752 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

the HVIRA declares, were “necessary to protect the claims and in-
terests of California residents, as well as to encourage the develop-
ment of a resolution to these issues through the international
process or through direct action by the State of California, as
necessary.”140

The Supreme Court, in a 5-4 decision, found that the Califor-
nia law was preempted by federal law.141 The Court reasoned that
the statute interfered with the President’s conduct of the nation’s
foreign policy and held that the statute was therefore preempted.142
The Court focused on executive agreements that the President had
negotiated with Germany, France, and Austria.143 However, the
problem with the Court’s reasoning is that the California law did
not conflict with any executive agreement and as Justice Souter,
writing for the majority admitted, “petitioners and the United
States as amicus curiae both have to acknowledge that the agree-
ments include no preemption clause . . . .”144

The Court relied on its prior decision in Zschernig v. Miller,
which created a dormant foreign affairs power of the President.145
In Zschernig, the Court declared unconstitutional an Oregon pro-
bate statute that prohibited inheritance by a nonresident alien, ab-
sent showings that the foreign heir would take the property
“without confiscation” by his home country and that American citi-
zens would enjoy reciprocal rights of inheritance there.146 As Jus-
tice Souter explained in his majority opinion in Garamendi, the
Court in Zschernig found “that state action with more than inciden-
tal effect on foreign affairs is preempted, even absent any affirma-
tive federal activity in the subject area of the state law, and hence
without any showing of conflict.”147 Even though no decision since
Zschernig had relied on that decision, the Court said that it provided
a basis for invalidating California’s law.148 The Court stressed that
the California disclosure statute limited what the President might

140. CAL. INS. CODE § 13801(f) (1999).
141. Garamendi, 539 U.S. at 401.
142. Id. at 421.
143. Id. at 408.
144. Id. at 417.
145. 389 U.S. 429 (1968).
146. Id. at 430, 432.
147. 539 U.S. at 418.
148. Id. at 420.

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do in some hypothetical future negotiations.149 Moreover, Justice
Souter said,

[i]f any doubt about the clarity of the conflict remained,
however, it would have to be resolved in the National Gov-
ernment’s favor, given the weakness of the State’s inter-
est, against the backdrop of traditional state legislative
subject matter, in regulating disclosure of European Hol-
ocaust-era insurance policies in the manner of HVIRA.150

At the very least, American Insurance Association v. Garamendi can
be understood as creating an enormous presumption in favor of
federal preemption of state laws. In the absence of any express pre-
emption or any conflict with federal law, the Court nonetheless
found preemption simply because the California statute was seen as
touching on an issue of foreign policy.151 The California law, of
course, regulated businesses operating within its borders and did
not directly deal with foreign nations. Nonetheless, the Court
found that a broad “dormant foreign affairs power” of the President
was sufficient to preclude California from enacting the state law
protecting its residents.152 It is hard to imagine a stronger pre-
sumption in favor of preemption.

V. AN ALTERNATIVE VISION: FEDERALISM AS
EMPOWERMENT, NOT LIMITATIONS

The conservative conception of federalism as a way of limiting
federal power, on examination, is highly formalistic and should be
replaced by a functional analysis of how to best equip each level of
government with the power to deal with social problems and en-
hance liberty. While the traditional approach to federalism has
been about limiting federal government power, an alternative con-
ception would be to see federalism as a basis for empowering each
level of government to deal with social problems. The benefit of
having three levels of government is that there are multiple power
centers capable of acting. Both federal and state courts, from this
view, should be available to protect constitutional rights. Federal,

149. Id. at 423-24.
150. Id. at 425.
151. Id.
152. Id.

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754 NEW YORK LAW SCHOOL LAW REVIEW [Vol. 50

state, and local legislatures should have the authority to deal with
social problems, such as unsafe nuclear waste, guns near schools,
and criminals owning firearms.

Constitutional doctrines about federalism should focus on how
to empower each level of government with the necessary authority
to deal with the complex problems of the 21st century. Viewing
federalism as a means of empowerment, rather than a means of
limitations, would have major implications for areas of constitu-
tional law such as the scope of Congress’s powers, federal court ju-
risdiction, and preemption doctrines.

More specifically, seeing federalism as empowerment rather
than limitations will profoundly reorient constitutional law in three
major ways. First, it will mean a broad conception of Congressional
power unconstrained by concerns of federalism. Congress’s power
under provisions such as the Commerce Clause and Section 5 will
be expansively interpreted, limited primarily by the political pro-
cess and judicial protection of other parts of the Constitution, such
as separation of powers and individual rights. The Tenth Amend-
ment should not be interpreted as an independent basis for invali-
dating federal laws.

Second, viewing federalism as empowerment will mean signifi-
cant expansion in the availability of federal courts to hear federal
claims. Since the end of the Warren Court, the Supreme Court has
repeatedly and significantly narrowed the scope of federal jurisdic-
tion in the name of federalism. This has occurred through the
Court’s restrictions on who has standing to sue in federal court,153
its expansion of states’ Eleventh Amendment immunity,154 its crea-
tion of new abstention doctrines,155 and its great narrowing of the
availability of federal courts to grant habeas corpus petitions.156 In

153. See, e.g., City of L.A. v. Lyons, 461 U.S. 95 (1983) (relying on federalism, in
part, to hold that plaintiffs seeking injunctive or declaratory relief must show a likeli-
hood of future harm and denying standing to a plaintiff to challenge the police use of a
chokehold).

154. See, e.g., Seminole Tribe, 517 U.S. 44 (holding that Congress can authorize suits
against states only when acting pursuant to Section 5 of the Fourteenth Amendment
and not pursuant to any other Congressional power).

155. See, e.g., Younger v. Harris, 401 U.S. 37 (1997) (holding that federal courts
must abstain and may not enjoin pending state court proceedings).

156. See, e.g., McCleskey v. Zant, 499 U.S. 467 (1991) (holding that federal courts
may not hear successive habeas corpus petitions unless there is a showing of cause and

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2005-2006] RECONCEPTUALIZING FEDERALISM 755

particular, this article is very critical of the unprecedented expan-
sion of sovereign immunity in which the Court has invented a prin-
ciple found nowhere in the Constitution and has made it supreme
over the enforcement of the Constitution and all federal laws.
These rulings neither advance liberty nor enhance effective govern-
ment. Rather than using federalism to limit federal court authority,
a better view would be to use federalism to open the doors to both
federal and state courts to those asserting federal, and especially,
constitutional claims.

Third, reorienting federalism as being about empowerment
and not limitations also would mean an enhancement in state and
local power. Actions by these levels of government are repeatedly
limited in the name of federalism by preemption. Removing the
shackles of federalism would result in a much more limited pre-
emption doctrine, with courts finding preemption only based on an
express Congressional declaration of a need to serve an important
governing interest.

The central idea is that federalism should not be a highly for-
malistic doctrine used to limit the ability of government to deal with
important problems. Instead, federalism should be reconceived as
a functional analysis of how to best equip each level of government
with the authority that it needs to respond to the serious problems
facing American society.

VI. CONCLUSION

The federalism decisions of the Rehnquist Court in many dif-
ferent areas — commerce power, Section 5, Tenth Amendment,
sovereign immunity, and preemption — need to be examined to-
gether. When looked at in this way, it is clear that the Supreme
Court has been using federalism to limit government power and to
prevent it from adopting desirable and needed social legislation.
This article argued for an alternative vision where federalism
should be about empowering government at all levels to deal with
social problems.

prejudice or actual innocence); Teague v. Lane, 489 U.S. 288 (1989) (holding that
federal courts may not hear habeas petitions asserting new constitutional rights unless
they are rights that would have retroactive application).

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