When the Constitution was originally ratified, the Framers consciously sought to keep the powers of the federal and state governments separate. The federal government could regulate those transactions that actually crossed state lines, while each state could use its general “police power” to regulate manufacturing, agriculture, and mining activities that occurred wholly inside its borders. The great virtue of this division was that it spared people and firms from having to deal with different sets of rules over the same activity, while fostering a healthy competition for residents and businesses among the several states.
That harmonious arrangement began to erode in the early 20th century, culminating in the Supreme Court’s devastating 1937 decisions that subjected virtually all economic activity to federal power. Overnight, the federal government went from regulating little beyond interstate telephones and railroads to regulating just about everything — including the states themselves. The new arrangement ironically expanded state power, too — particularly the power to create anti-competitive cartels and monopolies for special interests — but only to the extent that such power served federal purposes. In his 1950 article “The Passing of Dual Federalism,” Princeton University professor Edward Corwin asked whether, given the new federal dominance, states could even be salvaged “for any useful purpose.”
Nearly 50 years later, the Supreme Court finally answered “Yes,” in what was perhaps the late Justice Antonin Scalia’s greatest single contribution to constitutional law — his majority opinion in the 1997 case of Printz v. United States. At issue was whether the federal government could require state police officers to conduct background checks on prospective gun purchasers — in other words, whether the federal government could deputize state officials against their will and impress them into federal service.
First, a bit of background. One of the many troubling constitutional questions left in the wake of the New Deal was whether federal labor standards applied to state employees. The Supreme Court went back and forth on this issue as if caught in a logical maze in which all the available answers were wrong. Over several decades, the Court embraced and rejected a variety of indeterminate “balancing tests” before finally deciding, in the thoroughly misguided 1985 case of Garcia v. San Antonio Metropolitan Transit Authority, that the Founders intended the states to be protected from federal power solely by the federal political process, a counterintuitive proposition for which there is not the slightest evidence in the historical record.
Shortly after Garcia, Republican appointees regained a majority of the Court for the first time since the New Deal. Only then did the outlines of a coherent answer to Corwin’s question begin to emerge. In the 1992 case of New York v. United States, the Court articulated a crucial distinction that would have been totally irrelevant under the pre-1937 constitutional order — the distinction between laws of general applicability, which apply to state governments only incidentally, and laws that seek to commandeer state governments for federal purposes. As to the former, Justice Sandra Day O’Connor wrote that balancing tests might be preferable to the rule of Garcia, but the latter were a different matter: “The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”
The stage was now set for Scalia to extend the counterattack against the progressive federal takeover of state governments. When the Brady Act’s requirement of state-police background checks on prospective gun purchasers came before the Court five years later, he seized the opportunity. In a colorful majority opinion full of italics for emphasis, Scalia resoundingly reaffirmed the incontestable “dual sovereignty” of the states, which was “reflected throughout the Constitution’s text,” and not just there. Both the history of federal–state interactions and the very structure of the Constitution, Scalia wrote, required that states “remain independent and autonomous within their proper sphere of authority.”
As James Madison noted, the tumultuous Articles of Confederation had “exploded on all hands” the “practicability of making laws, with coercive sanctions, for the States as political bodies.” State governments, Scalia noted, must “represent and remain accountable to their citizens,” by being kept “independent and autonomous within their proper sphere of authority.” The “dual sovereignty” Corwin thought “passing” was in fact a vital constitutional imperative. “This separation into the two spheres is one of the Constitution’s structural protections of liberty,” Scalia wrote.
A balancing test might be appropriate, Scalia went on to say,
if we were evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments. . . . But where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a “balancing” analysis is inappropriate. It is the very principle of separate State sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect.
Scalia expressed a rather dim view of cooperative federal–state programs, such as federal grants to the states. He noted cases in which the Court had sustained such statutes “only after assuring ourselves that they did not require the States to enforce federal law.” In keeping with other decisions in the wake of the New Deal, he gave such “cooperative federalism” programs a dubious pass but seemed to imply that he was suspicious of them, too.
His suspicion was well founded, particularly in light of a new tactic of federal control — namely, attaching strings to federal delegation of regulatory powers to the states, as when the EPA gives states “permission” to implement its Clean Power Plan or face the dire prospect of the EPA’s implementing the plan itself in a far more onerous way. The innocuous term “cooperative federalism” is just a polite way to describe the federal takeover of state governments when accomplished by indirection and implied coercion.
Scalia’s invocation of the necessary-and-proper clause in Printz charts a path away from state subservience to an omnipotent federal government. In the wake of Printz, no law that violates the federal structure of the Constitution is a “proper” means of carrying into execution any enumerated power. Taking this logic farther, it may be possible once again to set the outer boundaries of the federal government’s delegated powers by reference to the wide area of the states’ reserved powers, as the Supreme Court did back in 1824, in Gibbons v. Ogden, when Chief Justice Marshall denied federal power to block state inspection laws or regulate the purely interior commerce of any given state by noting the laws “of every description” reserved for the exclusive dominion of the states.
Scalia well understood, as Sandra Day O’Connor had written in New York, that “accountability [of state governments to the people] is . . . diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation.” It would have been but a short step to recognize that the allure of free federal dollars, or of some nominal “flexibility” to implement federal regulations, too often proves an overwhelming incentive to ignore local preferences in favor of federal ones in matters of primary state and local jurisdiction.
The promise of Scalia’s approach in Printz was illuminated in a more recent case, Bond v. United States. The habitually ambivalent Justice Anthony Kennedy’s majority opinion rightly stressed how the division of authority into federal and state spheres “protects the liberty of the individual from arbitrary power” — especially when the 14th Amendment is there to give a federal check against the excesses of state government. Once again it is possible for the Supreme Court to equate unbridled national majority rule with “arbitrary power.”
Scalia was not perfect, to say the least. In his last book, Reading Law: The Interpretation of Legal Texts, he admitted that he might no longer be able to stand by many opinions he had joined or written during his time on the Court: On some questions, he wrote, “wisdom has come late.”
If Scalia was too permissive of “cooperative federalism,” he was too hostile to the so-called dormant commerce clause, which holds that the Constitution makes the United States into a unified free-trade zone, preempting state laws that discriminate against the commerce of other states. Indeed, the same constitutional structure that Scalia so effectively defended in Printz requires barring states from discriminating against out-of-state firms in order to favor local ones. The same goes for federal protections of minorities from state abuses, which the 14th Amendment made explicit, but which the Supreme Court substantially neutered in a series of late-19th-century cases.
The Supreme Court’s jurisprudence on federalism is a fearsome tangle of mistakes. Its few bright spots include Printz, which Scalia authored, and the dormant commerce clause, which he opposed. Nonetheless, the Court has generally permitted federal control of state governments where state autonomy is most vital and neutered federal protection against state abuses where federal protection is most vital. Fixing those errors is especially daunting today given the straitjacket of stare decisis, which blocks a coherent reexamination of dubious decisions starting from first principles. Too many of the Court’s modern constitutional milestones continue down the wrong turns of a century ago or more.
Justice Scalia’s opinion in Printz laid the foundations for correcting these enormous mistakes. May future Courts build on those foundations.
– Mr. Epstein is the Laurence A. Tisch Professor of Law at New York University School of Law, a senior fellow at the Hoover Institution, and the James Parker Hall Distinguished Professor of Law Emeritus and Senior Lecturer at the University of Chicago. Mr. Loyola is a senior fellow at the Wisconsin Institute for Law and Liberty.