Defending Federalism

Robert Alt

April 1, 2003

The Senate returns this week from its spring hiatus and will return to the task of confirming judicial nominees such as Jeffrey Sutton, who is scheduled to get a vote after two long years in limbo. With the Senate’s return comes the inevitable return of the liberal advocacy groups, who will once again march on Washington to raise the same old charge that the President’s nominees are anti-women, anti-minority, anti-disabled, and anti-environment. This time, the left-leaning groups are taking aim at nominees who they assert have taken positions in favor of "states’ rights" or "federalism"—a position which they assert demonstrates hostility toward their favored causes.

These groups seem to forget that the Constitution is a body of law, and not an accumulation of policy preferences. By pointing to particular disfavored results the environmental and disability lobbies assert that Federalism is just a code word for conservatism. But federalism is a series of constitutional rules, and as rules they cut against conservative and liberal positions alike. Federalism does not consider the desirability of the public policy issue, but only whether the federal government has the power to act in that particular sphere.

Indeed, two recent political disputes demonstrate how federalism transcends ordinarily political alliances. Prior to its break, the Senate passed a ban on "partial-birth abortion." The bill, which is awaiting likely approval by the House and signature by the President, makes it a federal crime for a doctor to perform this type of late-term abortion. The partial-birth abortion ban enjoys widespread popular support, received a bi-partisan vote in the Senate, and is particularly lauded by conservatives, who consider it a reasonable limitation on an unreasonable procedure. It is also unconstitutional. The constitutional problems do not necessarily arise out of the right to abortion found in Roe v. Wade, but out of constitutional federalism.

Many policymakers assume that the national government can regulate whatever they believe to be a national problem. But the Constitution does not permit Congress to legislate on every issue which is popular or good. While the Constitution grants power to the Congress to regulate activities that the American people want the national government to regulate, it also withholds from Congress the power to regulate in policy areas the people have chosen to reserve to the states. Thus, the Constitution gives to Congress the authority to regulate interstate commerce, but expressly withholds from the national government the authority to exercise traditional local police powers.

In the wake of the New Deal, however, the Commerce Clause was the subject of expansive reading by the federal government. The interpretation grew to the point that many mistakenly believed that Congress could regulate anything, because even the most miniscule, non-economic local activity would have some effect on interstate commerce.

In the 1995 Lopez case, however, the Rehnquist court clarified that Congress’s Commerce Clause power is not without limits. In Lopez, the court struck down the Guns Free School Zones Act, a popular bipartisan bill which sought the laudable end of keeping guns out of schools, but admittedly had nothing to do with commerce, let alone interstate commerce.

The partial-birth abortion statute suffers from the same fundamental defect as the Guns Free School Zones Act. Admittedly, unlike the act of carrying a gun, a doctor providing the service of partial birth abortion is clearly engaged an economic activity in the form of a service for pay. But simply being a commercial activity is not enough to pass constitutional muster: the Supreme Court has repeatedly held that activity must substantially affect interstate commerce. Assuming that those who testified before Congress are correct in saying that this procedure is rarely used, then even if the courts aggregate the economic activity, it is unlikely that the government can demonstrate a "substantial" economic effect sufficient to justify regulation. Therefore, it seems quite unlikely that the partial birth abortion bill would meet the requirements of federalism, in spite of the fact that the outcome is one which is highly favored by conservatives.

In yet another example of the outcome-neutrality of federalism, Judge Reinhardt, who is considered to be among the most prominent liberal judges in the country, held that it was unconstitutional to apply a federal statute prohibiting the possession of child pornography to a parent who possessed a suggestive picture of her minor child. Relying on recent Supreme Court decisions, Judge Reinhardt found the act of possessing the photo to be non-economic, wholly intrastate in nature and not sufficiently connected to interstate commerce, and therefore beyond the scope of congressional power.

These potential and actual legal results beg the question: Is society without power to regulate partial-birth abortion? Or possession of child pornography? No. Rather, the federalism-based limitations only specify that it is not appropriate for Congress to regulate here. The states may (and many already do) regulate in these areas so long as they do not offend constitutional guarantees of privacy or free speech in doing so.

Yet if we are to believe advocates who attack recent judicial nominees based upon federalism, any judge who strikes down the partial birth abortion case must favor expansive abortion rights, and Judge Reinhardt must favor possession of child pornography. Just as it is unfair to call Judge Reinhardt "anti-children" or "pro-kiddie porn," it also is unjustified to cast aspersions on Bush’s judicial nominees based upon the outcomes of their cases. Indeed, such accusations seem particularly unfounded against nominees like Jeffrey Sutton, [a nominee to the Sixth Circuit scheduled for a vote on April 29] who acted not as a judge but merely as an attorney for his clients in federalism cases.

Those who oppose President Bush’s judicial nominees have done their best to equate federalism with anti-minority view, but that just isn’t so. Federalism is nothing more than a neutral series of constitutional rules. As Judge Reinhardt’s ably demonstrated, judges on the left can and should apply this just as judges on the right.

Robert D. Alt is a Fellow in Constitutional Studies and Jurisprudence at the Ashbrook Center for Public Affairs at Ashland University and teaches Constitutional Law at Ashland University.