SUPREME COURT WATCH

September 11 changed so many things. The Supreme Court of the United States, for so long a perceived fortress of stability in times of tumult, was displaced from its building for the first time since it moved in back in 1935. On October 26, the detection of anthrax spores in a Court mail handling facility prompted a relocation of oral arguments to the District of Columbia’s federal courthouse. Although arguments proceeded with the aid of the traditional yellow and red lights brought over from the Court, the momentous fact that terrorism of unknown origin had reached into the core of the third branch of the nation’s government hung over every word.

It remains to be seen whether September 11 also will bring changes to the direction of the Court’s decisions. The debate about whether it will, and whether it should, is well under way. The first contribution was offered by the New York Times’ Supreme Court reporter, Linda Greenhouse. Writing on September 30, she proclaimed that "[t]he Supreme Court’s federalism revolution has been overtaken by events."¹ Predicting that the line of decisions issued by the Rehnquist Court invalidating laws as intruding upon the constitutional role of state governments was likely to halt, Ms. Greenhouse suggested that those cases were "based on a post-cold war atmosphere of tranquility." She labeled the Court’s 1995 decision in Lopez,² often cited as the decision that dramatically marked the end to a long era of broad deference to congressional judgments about the scope of federal legislative power, "an artifact from a bygone era." Constitutional scholar and Clinton Administration Acting Solicitor General Walter E. Dellinger concurred, remarking that "[f]ederalism was a luxury of peaceful times."

Columnist and author Edward Lazarus also noted the disconnect that would result from a continuation or expansion of the Court’s federalism emphasis in a new world that apparently demands a more robust and pervasive role for the national government. Lazarus writes, "After all, it would be strange indeed for the federal government to assume for itself the role of ridding the world of its most pressing threat to liberty while, at the same time, the Supreme Court declares the federal government helpless to remedy significant abuses of civil rights at home."³

Others foresee no conflict between the recent federalism decisions and the imperatives of a post-September 11 world. Professor Ernest Young classifies the decisions in Lopez era decisions as appropriate judicial invalidation of laws "where no plausible justification for national action exists," such as the federal Gun Free School Zones Act at issue in Lopez.⁴ In contrast, a stipulated arena for national responsibility is securing the nation against foreign threats. Similarly, Professor Marci Hamilton identifies the situations where congressional enactments have or might run afoul of federalism principles as areas in which a law was motivated by a photo opportunity rather than any reasoned assessment about the appropriateness of federal (rather than state or local) intervention. As she writes, "Congress sought . . . to govern every last jot and tittle of public policy—to the point that it has become difficult to point to many truly meaningful corners left for local government, with criminal law and land use the few candidates left for local control."⁵

Who has the better of this argument? Do the federalism precedents of the last decade constrict the ability of the national government to respond to the threat of terrorism? Or will the press of this crisis drive the Court to back off from these cases?

Two key principles emerge from the Supreme Court’s recent federalism cases. First, Lopez and Morrison⁶ teach that Congress cannot count on using the grant of authority of the Commerce Clause to automatically support federal regulation of local, non-economic activities, and particularly violent criminal conduct, that might in the aggregate have an impact on interstate commerce. Rather, the Supreme Court will define limits to the field of regulation of commerce and seek to preserve a role for states in regulating local activities. Second, "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."⁷

Let’s look at the key elements of the evolving national response to terrorism that implicate issues of federalism in light of these principles. The most recent element of this response is the Aviation and Transportation Security Act, signed into law on November 19, bringing about the federalization of airport security. Although this is a new undertaking for the national government, it is not one that traditionally has been within the realm of the states. Rather, the regulation of air transportation, a central channel of interstate commerce, consistently has been undertaken on the federal level and this change represents only a shift from contracting with the private sector to direct provision of services by the national government. No federalism problem here.

Second is the sweeping USA PATRIOT Act ("Using and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act") (Pub. L. No.107-56, 115 Stat. 272), signed into law on October 26, 2001. This law has been controversial for the breadth of new investigative tools provided to law enforcement, argued by some to be at the expense of established civil liberties.⁸ It also expands the scope of federal authority over money laundering activities involving international transactions, the smuggling of bulk cash into and out of the United States, and the unlicensed money transmitting businesses that affect interstate or foreign commerce, and it criminalizes terrorist attacks against mass transportation systems—all transnational activity or otherwise clearly within the zone of constitutional authority of the national government under Article I’s Commerce Clause. The law adds several provisions to the immigration laws dealing with the detention of terrorist aliens and the monitoring of foreign students, also a subject matter long deeded to the national government.

When it comes to dealing with state and local law enforcement—a potential federalism trap after the Supreme Court’s decision in the Printz case insulating state and local law enforcement officers from a federal mandate to process "interim Brady" background checks pursuant to federal law—the PATRIOT Act largely appears to have mastered the lessons of the Rehnquist Court. With one possible exception, there are no mandates for state or local officials to implement federal regulatory programs. Rather, the national government either undertakes to do the task itself or provides incentives (through the provision of grants or the authorization to enter into contracts) to secure assistance or participation at the state and local level. For instance, the Act provides expanded grants to improve the ability of state and local law enforcement, fire department, and first responders to respond to and prevent acts of terrorism.

The exception possibly raising federalism issues is the section of the USA PATRIOT Act prohibiting states from issuing to any individual a license to operate a motor vehicle transporting in commerce a hazardous material unless the Secretary of Transportation has first determined, after notification, that the individual does not pose a security risk warranting denial of the license.⁹ States also are required to submit to the Secretary of Transportation, at such time and in such manner as the Secretary may prescribe, the name, address, and such other information as the Secretary may require, concerning each alien to whom the state issues a license and each other individual to whom such a license is issued, as the Secretary may require. Unlike the interim Brady law at issue in Printz, there already is extensive federal regulation of the issuance of commercial driver’s licenses as a condition of federal transportation funding. Accordingly, this background check requirement would be judged by the more lenient standards applicable to exercises of the congressional spending power by states. In addition, this new law does not impose an affirmative obligation on state officials to perform a background check but only to consult with the Secretary of Transportation.

Thus, my superficial assessment reveals no doctrinal inconsistency between the Rehnquist Court’s major federalism decisions and the legislative response to the September 11 tragedy. To be sure, one can point to a vague ideological inconsistency, to the extent that the Court’s federalism cases sound a note of skepticism about the expansion of the national government generally and some of the techniques used to accomplish that expansion. More emphatically, however, the Court has sought to underscore that "[t]he Constitution requires a distinction between what is truly national and what is truly local."¹⁰ From the earliest days of the nation, the Court has recognized matters of repelling threats to the country and national security as core areas of responsibility and competence for the national government. This area will expand in the coming months, but it remains nevertheless an area for national, rather than state, governmental authority.

As Professor Young notes, "[A]s Washington turns its attention to fighting a war on terrorism, we may increasingly have to rely on state and local governments to address the fundamental policy concerns of daily living."¹¹ Attorney General Ashcroft already announced a reorientation of the overall mission of the Department of Justice, including the Federal Bureau of Investigation, to focus on fighting terrorism and to devolve to state and local law enforcement matters that effectively could be addressed at that level. To the extent that the post-September 11 responses drive the national government to reprioritize and focus lawmaking and resources on "what is truly national," the underlying principles of federalism are served.