Making Our Democracy Work (21 page)

M
Y 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.

N
OW 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 primarily 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.

M
Y 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

Furthermore, the Court has long interpreted the commerce clause as furthering that basic purpose by forbidding states to interfere with the maintenance of a national market, even in the absence of a specific congressional law. Applying what it calls the “dormant commerce clause,” the Court strikes down as unconstitutional any state law that significantly interferes with the operation of national or international markets.
¹⁶

This principle is clear. But, again, the need for factual information and technical judgment makes it difficult for courts to implement the principle in practice. Examples illustrate the difficulty. Suppose a state enacts a law that prohibits bringing into the state peaches grown with the use of certain pesticides. Or, a state law insists upon the use of special steel for elevator cables. Or, a state law prevents interstate trucks from transporting dynamite during daylight hours. Are these state laws designed expressly to protect local producers from out-of-state competition? If so, they violate the dormant commerce clause. They interfere with the national market in order to protect local business, which is the very evil the clause seeks to prohibit. But suppose these state laws are designed primarily to protect citizens from dangerous pesticides, from faulty elevators, or from the risks of an explosion. If so, their objectives might well justify the negative impact on interstate trade.
¹⁷

How are courts to determine whether these laws protect consumers from serious harm or have a more sinister intent? Like the earlier questions asking whether a congressional law falls outside the Constitution’s delegation to Congress, this question calls for investigation of the
factual circumstances. The answer likely turns on general facts and an understanding of how the relevant markets work. It likely turns on the exercise of judgment in light of that technical knowledge.

Unlike the first federalism subject (that of Congress’s power to legislate), the answer to this commerce clause question cannot be found by permitting courts to accept virtually any reasonable solution that a legislature adopts. This is because a
state
legislature is more likely influenced by the very interests the national commerce clause seeks protection against, namely, the parochial state interests that threaten a national marketplace. When discussing the first subject, we saw how the fact that a state’s voters elect that state’s national senators means that their elected senators will pay attention to state interests when they vote for federal legislation. But here, the converse fact that a state’s governor, say California’s governor, is
not
elected by another state’s voters, say Florida’s voters, means that California’s governor has little reason to pay attention to Florida’s interests when deciding whether to sign a law that effectively bans the sale of Florida avocados in California.

Thus, when the Court has faced a problem of a state law that threatens the national market, it has not simply deferred to state legislatures. Rather, it has applied disinterested judicial decision making while trying to overcome its major institutional disadvantage, that of finding general legislative facts. And it has done so not by deferring to a legislature’s judgment but by making clear that whatever the Court’s own decision, the
federal
legislative body, Congress, remains free to overturn that decision. If, for example, the Court finds that a state law prohibiting daylight transportation of dynamite violates the dormant commerce clause by interfering with interstate commerce, Congress, pursuant to its own power to regulate interstate commerce, can authorize the state to reenact that very law.

Furthermore, Congress can delegate its own power to have the last word to an administrative agency. Thus it can give the federal Department of Transportation the power to decide whether a state’s prohibition of daytime dynamite transport significantly interferes with the national market. The Department of Transportation can authorize the state to maintain its law. And, if a court were to review that Transportation Department decision, it would do so only in the way it would
review any other agency decision, giving deference to the agency and setting aside the agency’s determination only if unreasonable.