The Federalism Project

American Enterprise Institute

Viva la Revolution? Federalism and the Supreme Court's October 2000 Term

At our July 11 event, four panelists (Alabama Attorney General William Pryor, Oklahoma City Law Professor Tom Odom, John Elwood of the DOJ, and Michael Greve) considered last term's major federalism decisions along with general trends in spending clause, commerce clause, eleventh amendment, and fourteenth amendment jurisprudence.  

  • Click here to read General Pryor's panel paper on federalism and statutory construction ("The Demand for Clarity: Federalism, Statutory Construction, and the 2000 Term, published in he Cumberland Law Review {32 Cumb. L. Rev 361}).

Commerce Clause

Justices Scrutinize Agency Rules that Threaten Federalist Arrangements
Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers
No. 99-1178
Decided January, 2001

The opinion in SWANCC has an explicit and implicit message, both potentially far reaching.  Explicitly, the Court rejected the Environmental Protection Agency's interpretation of the Clean Water Act.  The EPA's Migratory Bird Rule--developed by in 1986 to "clarify" the meaning of the CWA--was deemed inconsistent with the statute. Why didn't the EPA receive customary agency deference?  According to Court, when an administrative interpretation of a statute raises serious constitutional problems, the justices will construe the statute to avoid such problems in the absence of clear congressional intent.  

What's notable, here, is the Court's understanding of a "serious constitutional problem," namely, a rule that threatens traditional federalist arrangements.  The Bird Rule, the Court argues, deserves a high degree of scrutiny because it threatens states’ "traditional and primary power" over land and water use.  Agencies are hereby warned: excessive nationalism prompts judicial scrutiny. 

Since the Bird Rule was deemed incompatible with the CWA, the justices did not need to consider whether congress could regulate inland ponds and pits if it jolly well felt like it.  But the underlying message of SWANCC is clear: there would be something deeply suspicious if Congress used its commerce power to regulate non-navigatable waters.  The current Court-- as evidenced by Lopez and Morrison--is not terribly fond of the logic of aggregate effects, and SWANCC is in this tradition. "Twice in the past six years we have reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited,"  the Chief Justice explains; environmental law may well be the next area that feels the judicial pinch.

Click here for the decision

Click here for commentary by CEI's Sam Kazman, who hopes that SWANCC ushers in a new era of state-based environmental protection (from the Endangered Species and Wetlands Report).

The Federal Arbitration Act Does not Apply Broadly to State Employment Contracts
Circuit City v. Adams
No. 99-1379
Decided March, 2001

This case involves two issues: (1) Should an exemption contained in the FAA be read broadly to cover most state workers and (2) Are arbitration agreements binding in civil rights disputes? Kennedy, writing for the Court, rules that a narrow interpretation should be given to the Section 1 exemption, since an "expansive construction" would go "beyond the meaning of the words Congress used"  (and statutory language, he maintains, takes precedence over statutory intention.) Since the FAA applies broadly, employers may take all workplace-related disputes to arbitration as long as employer/employee contracts to this effect were fairly agreed upon.  Workers, then, waive their right to go to court when they sign arbitration agreements, even in civil rights disputes.  

What about the Equal Employment Opportunity Commission?  The agency argues that it should be able to sue for relief on behalf of workers who are covered by arbitration agreements, even if the workers cannot bring suit  themselves. The Court agreed to take up the issue next term in EEOC vs. Waffle House.

Statutory Construction

Private Citizens may not Sue States that do not Intentionally Discriminate Under Title VI
Alexander v. Sandoval
No. 99-1908 Decided: April, 2001

According to the 1964 Civil Rights Act and its enforcement provisions, states, cities, and colleges that receive money from the federal government must comply with federal anti-discrimination rules or risk losing their funding. The question in Sandoval: can a private individual sue a state agency for unintentional discrimination--ie, laws that have a disparate impact on the state's population)  At issue here is the Alabama Department of Public Safety's state driver's license test. The test, since the passage of an English-only constitutional amendment in 1990, has been offered in English only.  This rule, petitioners argued, had a disparate impact on Alabama citizens.

Writing for a 5-4 Court, Justice Scalia explains that Congress did not intend this sort of private lawsuit when it enacted Title VI.  Suits may be brought only for intentional discrimination on the basis of race and national origin under its provisions; it may not be used to challenge policies that are discriminatory in effect. "Statutory intent," he writes, is  "determinative." "Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute."

Click here for the decision

Click here to see how a District Court has recently attempted to skirt this ruling; resistance may be futile but Judge Stephen Orlofsky is trying under 42 U.S.C. 1983. 

Click here for Michael Greve's take on federalism and statutory construction; here for a recent paper on the topic by General Bill Pryor

Congress did not Abrogate State Sovereign Immunity under the ADA
University of Alabama Board of Trustees v. Garrett
No. 99-1240 Decided: February, 2001

Can a state be sued, by one of its citizens, without its consent for money damages?  The issue of state sovereign immunity--and Congress' ability to abrogate it--has been a favorite federalism question of the Court's for the last several terms; Garrett takes up this issue in the context of the 1990 American With Disabilities Act.   

In Garrett, the Court overruled Congress's explicit abrogation of States' immunity from suit under Title I of the ADA. Congress's abrogation
power stems solely from its enforcement power under § 5 of the 14th Amendment, and the Court ruled that the alleged state discrimination against the disabled was too random to qualify as a pattern of abuse.

 Further, the case clarifies the legal status of disability under the 14th Amendment.  Disability is not a suspect classification, like race, that requires a compelling government interest when laws have a disparate impact; states are only obligated to show a rational purpose when their laws inconvenience disabled citizens. As the Chief explains: "States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational. They could quite hard headedly–and perhaps hardheartedly–hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause."

Click here for the decision


Fraud-on-the-FDA Claims may not be Raised in State Court
Buckman v. Plaintiffs' Legal Committee
No. 98–1768
Decided: February, 2001

Can companies be sued, in state courts, for defrauding the Food and Drug Administration?  A unanimous Supreme Court says no: state tort law in this area conflicts, and thus is preempted, by the federal regulatory plan for medical devices (part of the Food Drug and Cosmetic Act and its later amendments).

Buckman, like last term's major preemption cases (Crosby v. Trade Council and Geier v. Honda) demonstrates that the same justices who are committed to federalism are, in the right circumstances, also committed to federal supremacy.  As Justice Rehnquist explains, policing fraud against federal agencies is not a traditional state function, and thus there is no presumption against a federal agency occupying the field. "The relationship between a federal agency and the entity it regulates is inherently federal in character because the relationship originates from, is governed by, and terminates according to federal law.”  

Further, state tort law interferes with a "delicate balance" of Agency objectives: "Complying with the FDA’ s detailed regulatory regime in the shadow of 50 states’ tort regimes will dramatically increase the burdens facing potential applicants, who might be deterred from seeking approval of devices with potentially beneficial off-label uses..."

Click here for the decision

Click here for Michael Greve's Legal Times article on the "collision course" between preemption law and federalism

14th Amendment/Civil Rights

A Private Association may be Sued like a Public Agency, Sometimes
Brentwood Academy v. Tennessee Secondary School Athletic Association
No. 99-901
Decided: February, 2001

In a case with interesting federalism implications, the Court ruled that a private association regulating sports competitions in public and private schools (the TSSAA) can be sued as a state agency by one of its angry members.  (Here, the Brentwood Academy was allowed to sue the TSSAA for violating its free speech rights through a recruiting regulation.)   When does the activity of a private group, such as the TSSAA, constitute state action? According to Justice Souter, the “criteria lack rigid simplicity,” but “entwinement” is key: "the nominally private character of the association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings.”  The ruling exposes the association, and others like it, to novel 14th Amendment and §1983 legal claims.

Justice Thomas, in dissent, objects to an entwinement rule that has no basis in text or precedent.  The majority’s holding, he writes, “not only extends state-action doctrine beyond its permissible limits but also encroaches upon the realm of individual freedom that the doctrine was meant to protect.”  Private action, like that if the TSSAA, may be wrongful, but it is not to be treated as state action.

Click here for the decision

Schools may not Exclude Bible Clubs from Meeting After Hours
Good News Club v. Milford Central School
No. 99-2036 Decided: June, 2001

As part of a national network, the Evangelical Good News Club meets after-hours in elementary schools across the country.  A public school in Milford, New York revoked the Club's permission to meet, citing concerns about religious instruction as an after-school activity. The question presented to the Court: must public schools open their doors to religious organizations on an equal basis with all others? Does the 1st Amendment allow school-by-school discretion on which groups can and can not meet? The case pits the free expression claims of the Good News Club against the Establishment Clause concerns of Milford Central. Complicating the case is the fact that the Club is designed for children enrolled in grades K-6, an age group particularly susceptible to suggestion.  

On a vote of 6-3, the Justices decided that neither proselytizing nor the young age of the participants were enough to trump the Good News Club's First Amendment right to meet.  The Milford ban amounted to impermissible viewpoint discrimination against private speakers in a public forum.

While, from one perspective, this decision seems hostile to state concerns (why can't a local school board decide which groups can meet?) it is, in fact, a decision that encourages state discretion.  A "wall of separation"-type ruling would have prevented schools and local communities, in the future, from accommodating any activity tinged with a religious message.  Good News Club, like Lamb’s Chapel and Rosenberger, suggests that religious speech discussing otherwise permissible subjects should not be summarily banned from the public square.

Click here for Rick Garnett's Wall Street Journal article, where he argues that Good News is good news for supporters of vouchers and charitable choice.


2003 Term

2002 Term





Selected issues are highlighted in selected cases; neither the list nor the summaries are intended to be comprehensive