The approach, complex though it is, therefore creates a workable partnership between the courts and Congress. Furthermore, it respects the role of agencies in performing the functions of government. By taking account of comparative expertise, the Court allows agencies to handle matters within their competence while subjecting them to appropriate constraints. Congress likely intends this arrangement for the simple reason that it can make statutes work better. It helps the tripartite system work well in practice. And that in turn helps to maintain public acceptance of the Court’s decisions.
Chapter Ten
The States and Federalism:
Decentralization and Subsidiarity
THIS CHAPTER CONCERNS ways of maintaining a strong working relationship between the Court and the states. This relationship embodies the constitutional idea of federalism, an idea that concerns the level of government at which Americans should try to solve common problems. The question of “proper level” often turns on empirical matters. And Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, invoked four famous propositions about the relations of courts and legislatures in respect to empirical matters. First, when government seeks a solution to an economic or social problem, empirical matters are often highly relevant. Second, comparatively speaking, judges are not well equipped to find remedies for economic or social problems. Third, legislatures, comparatively speaking, are far better suited to investigating, to uncovering facts, to understanding their relevance, and to finding solutions to related economic and social problems. Fourth, the Constitution embodies a democratic preference for solutions legislated by those whom the people elect. These propositions are often relevant when federalism is at issue.1
With these “truths” in mind, the Court has tried to apply principles of federalism while relying on those with greater factual knowledge or experience to help it determine where the law assigns responsibility for a particular problem.
UNDERLYING IDEAS
CONSTITUTIONAL FEDERALISM EMBODIES a historical idea about the legitimacy of federal governmental power. Madison expressed this idea when he described the Constitution as a “charter [] … of power … granted by liberty,” not a “charter[] of liberty … granted by power.” His point is that in America, “We the People” are the source of the legitimate exercise of federal power. We the people delegate to the central government the power that it has. This means that any power that the Constitution does not delegate must be reserved for a free people, who Madison thought would not delegate to a central government the power to deprive them of their freedom.2 In contrast, Madison suggests, Europeans have often located the source of legitimate power in a king. In such a system, power flows from the center. And power not delegated elsewhere, say to the people, remains at the center. Thus, even if a liberal king grants liberties to the people, those liberties constitute a grant of freedom by someone with power, namely, the king, to those otherwise without it.3
The difference between these two approaches is stark. In the one case, the legitimate power of government originates at the periphery, and in the other case, at the center. As the framers recognized, the former, “local” approach has several advantages. For one thing, constitutional federalism helps democracy itself work better. By assuring state and local officials broader decision-making power, it simultaneously places greater power in the hands of those who elect those officials. That smaller number of people can better understand the nature of local problems. They can more easily communicate with those who stand for office and can more accurately evaluate the work of their elected officials. Moreover, by placing power in local communities, federalism reflects the democratic ideal and encourages citizens to participate in government, particularly in local government, where they can more easily make a difference.
In addition, constitutional federalism is practical. Those whom a problem affects more directly are more often likely to understand it and find ways to resolve it. Local firefighters, police departments, health officials, and those whom they serve are more likely to understand local conditions, including community needs and resources. In essence, they possess comparative expertise. At the same time, a national bureaucracy, subject to the control of national officials and a national electorate, is needed to deal with issues that are national in scope such as those associated with foreign affairs, war, interstate commerce, and much of the environment. Ideally, constitutional federalism matches the issues with government units that will best handle them.
Constitutional federalism reflects a further practical idea—the benefits of experimentation. In the mid-1930s depression, Justice Brandeis, in his New State Ice dissent, succinctly expressed this idea: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” The value of not adopting a solution, even to a national problem, too quickly; of trying different approaches; and of trying out different ideas before committing the nation to one approach—all of these reasons call for ensuring that states have constitutional leeway to experiment.4
SUBSIDIARITY
THESE SEVERAL DIFFERENT ideas underlie a concept that modern European courts have found useful in a roughly comparable context, namely, the concept of subsidiarity. This concept originated in late-medieval religious thought, yet it provides one general method for applying federalism in this more democratic age. Subsidiarity insists that governmental power to deal with a particular kind of problem should rest in the hands of the smallest unit of government capable of dealing successfully with that kind of problem. One begins by assuming that power to solve a problem should remain at the local level. One then asks whether it is necessary to abandon this assumption in order to resolve the problem. One can continue to ask this question, level by level. And one should answer it by climbing no higher up the governmental unit ladder than necessary to deal effectively with the problem.5
The European Union (EU) has written this principle into its treaties. The treaties leave in the hands of the member states the authority to deal with issues that can be handled better at that more decentralized level. These issues include consumer protection, education, labor relations, taxation, and public health, as well as numerous matters of local government. At the same time, the treaties create binding legal rules at the central EU level for managing multination matters, particularly those that affect trade among the member states. The treaties also permit the EU to write laws concerning, for example, common currency, finance, worker migration, the environment, and other matters better handled at the EU inter-nation level.6
The European Court of Justice sometimes resolves legal questions about the meaning of the European treaties. And it may apply the concept of subsidiarity when it does so. For example, the court considered whether Italy, a member state, could ban the sale of dry pasta not made exclusively from grano duro, a type of wheat grown in southern Italy. The court held that the treaties forbid Italy’s restrictions on the kinds of pasta that could be sold on the ground that they unreasonably inhibited the sale in Italy of imported pasta. The court nonetheless permitted Italy to protect its own consumers by insisting that all pasta indicate on the package whether the product is made from grano duro.7
As used today and considered in general terms, the principle of subsidiarity incorporates an approach that can help guide American, as well as European, policy makers. The approach sees power as flowing from “below,” it finds democratic advantages in localism, and it sees practical value in local control and local experimentation. So viewed, the concept incorporates the historical, democratic, and practical ideas that underlie American constitutional federalism. The underlying thought, like that of the Constitution itself, is that the national government should resolve national problems while state and local governments should retain the power to deal with more local problems, with which they are more likely to deal effectively.
Recognition of the impor
tance of these ideas, which make up federalism, and the empirical nature of the determinations needed to apply them can help the Court maintain an effective working relationship with the states as well as with the federal government. Discussion of several related areas of law will illustrate the interplay between basic federalism principles and empirical judgments.
LIMITING FEDERAL LEGISLATIVE AUTHORITY
MY FIRST FEDERALISM subject concerns Congress’s power to legislate. The Constitution sets forth a specific list of legislative powers that it delegates to Congress. It uses broad language to describe the items on that list, for example, by granting Congress the power to “regulate Commerce with foreign Nations, and among the several States.” It adds further that Congress may “make all Laws which shall be necessary and proper for carrying into Execution” those powers. The Court must sometimes try to interpret these provisions—to determine their limits and their reach. In doing so, the Court must apply principles of federalism. But, as Brandeis noted, the Court cannot easily make or evaluate the relevant facts. The result is that in this set of cases, practical principles of federalism counsel the Court to turn over the lion’s share of interpretive responsibility to Congress itself.8
A 1995 case, for example, required the Court to decide whether the Constitution gave Congress the authority to enact a statute forbidding the possession of a gun near a local school. The Court held that statute did not fall within the scope of the legislative authority that the commerce clause delegated to Congress. Rather, it represented a congressional effort to usurp the legislative powers that the Constitution reserved for the states. The case was difficult to decide largely because of the factual interconnections that underlay the Court’s judgment, as they often do where legal questions involving federalism are at issue.9
For one thing, today’s world requires governments to enact laws affecting matters that often have strong local connections as well as potential multistate connections. Chemical substances spewed into the air in one city can, through wind and rain, affect air and water in cities thousands of miles away. One state’s efforts to control auto exhaust can, by affecting the technological makeup of automobiles, affect the price, quality, production, and ultimately the use of cars throughout the nation. Growing wheat, or growing marijuana, at home for personal use can, if the practice is widespread, affect the price and the consumption of the product in other states.10
For another thing, there is rarely an easy answer to the question of what level of government should be primarily responsible for helping to resolve the problems that potentially call for legislation. Which unit of government should be responsible for providing the education that will enable the future workers, mobile Americans, who may live in many states during their lifetimes, to compete effectively in a world where commerce is international? Where should responsibility lie for a worker’s health care? When should we separate out for local resolution one aspect, for example, robberies, of a broader problem, in this case crime?
These questions show that often it is reasonable to subdivide problems, treating some aspects of a problem as local and others as national. But whether, when, and how governments should do so depends on policy makers’ views about the nature of the particular problem. It is one thing in general to favor decision making at a more local level. It is quite another to estimate the comparative effectiveness of local versus national authority in a factually interconnected world. Facts help determine the answers. Legislators are better able than courts to gather empirical information, to make fact-based predictions, and to exercise informed policy judgment. Hence the Court should often hesitate before substituting its own judgment for that of Congress.
At the same time, if the Court should so hesitate, this does not leave the states without protection. Members of Congress themselves, while federal officeholders, are nonetheless state officials. State and local voters elect them all. Thus members of Congress must, and they do, try to further the interests of those state and local voters. They must, and they do, remain aware of state and local issues. They must, and they do, frequently consult governors, state legislators, mayors, city council members, school board officials, chambers of commerce, union locals, and, of course, the voters themselves. The fact that federal legislators must maintain such strong local ties means that, insofar as the public favors local control and insofar as it is suspicious of authority exercised from a distant city (whether America’s capital, Washington, or the EU’s capital, Brussels), locally elected legislators will take local views into account.
Moreover, the vast bulk of American law—including all family law, most criminal law, almost all tort law, almost all property law, most business law, most education law, most health law, most welfare law, even much environmental law—is state law, not federal law. When Congress does legislate nationally, imposing burdens or obligations on the states, it often does so by granting federal money to states or localities, perhaps simultaneously imposing federal standards. Congress also has created joint state-federal cooperative regulatory systems, such as the Clean Water Act. Thus, the elected members of Congress, in making judgments about where problems are better resolved, have left the vast bulk of American law for the states to create, to apply, and to develop. They have created federal legal regimes foreseeing state-federal cooperation. And they have thereby helped to protect the states from federal efforts to accrue power at their expense.
NOW LET US return to our 1995 guns-in-schools case. The question was whether the Constitution’s commerce clause grants Congress the authority to enact a statute forbidding the possession of a gun near a local school. In deciding the case, the Court took as given certain long-held underlying legal principles. The commerce clause, for example, grants Congress the power to regulate items that move in interstate commerce and activities that affect interstate commerce. Moreover, when the Court determines whether an activity, say growing wheat for home consumption, has the required interstate effect, it must assume that Congress has the power to act in light of the total effect by aggregating instances of similar activity. Even though one farmer’s homegrown wheat supply would not affect the interstate price, an aggregation of all wheat that all farmers grow at home might well do so. Between 1938 and 1990, the Court, applying these and similar legal principles, consistently upheld federal statutes on the ground that the underlying activities significantly affected interstate commerce.11
The Court, however, struck down the federal statute making criminal the possession of a gun near a school. The Court said that education and crime were primarily local matters, that gun-related violence would primarily affect local communities, and that the criminal laws of the states could adequately deal with the gun-possession problem.12
Although there is a certain logic to that position, it is not difficult to find potential interstate effects that could justify making possession of a gun near a school a federal crime. Possession of guns in schools means violence, and violence means poor education. Poor education means an unproductive, noncompetitive workforce. And that kind of workforce negatively affects not just one state but all states. School violence, of which guns are a part, arguably presents a national problem warranting a national solution.13
Thus, we have two sets of logical links, pointing in opposite legal directions. Which should control the outcome of the Court decision? The answer requires the judge to make a decision about the importance of each of the underlying connections. That judgment must be informed by fact, and legislators are more likely to find those facts and better able to determine their policy relevance. That is why courts, aware of Brandeis’s four “truths,” should defer strongly to Congress’s judgment about such matters. And it is why a workable relation between state and federal governments depends in large part on courts granting Congress that deference.
In short, application of the subsidiarity principle to the legal problem of interpreting the Constitution’s list of federal legislative powers requires the Court to consider matters that are primar
ily empirical and are often matters of degree. And the Court is not well suited institutionally to make those kinds of determinations. Consequently, and not surprisingly, the Court’s decision in the gun case did not stop Congress from reenacting a virtually identical statute. This time the statute applied its strictures only to guns that had moved in, not just affected, interstate commerce. And virtually every gun satisfies that condition.14
The Court, then, has found it difficult to discover a principled way to interpret the Constitution’s list of legislative powers, including the commerce clause, so as to be able to use principles of federalism or subsidiarity to limit those powers. This does not reflect any failing on the part of the principles or of the Court. Rather, given the underlying fact-based nature of the problem, it reflects today’s world as it is.
PROTECTING THE NATIONAL MARKET
MY SECOND FEDERALISM subject concerns legislative action that threatens to violate federalism principles. Here the Court can, and does, take a more active role in resolving the resulting federalism issue.
The issue arises from the following circumstances: The Constitution seeks to grant the federal government the authority to handle national issues. High on the list of such issues is maintaining a national market. The commerce clause specifically grants Congress the power to regulate interstate and international markets.15
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