Government Power

Government Power

E-mail debates of newsworthy topics.
Aug. 6 1997 3:30 AM

Government Power

VIEW ALL ENTRIES

       First, I think a little more background will be helpful:
       Among the framers' principal checks on federal power was that Congress would be able to legislate only with respect to matters enumerated in the Constitution. In recent times, however, due particularly to the Supreme Court's broad reading of Congress' "Commerce Clause" power, this limitation has become a laughingstock. Thus, the following from the transcript of oral argument in the Supreme Court's 1995 Lopez case: "Question: 'Can you tell me, ... has there been anything in our recent history in the last 20 years where it appears that Congress made a considered judgment that [it lacked the constitutional power] to reach a particular subject?' (Laughter)."
       In Lopez and a handful of other recent decisions, the court has reaffirmed the existence of limits on congressional power. Lopez involved a law prohibiting "any individual knowingly to possess a firearm ... [in] a school zone." The court ruled that possessing guns near schools did not "substantially affect" "Commerce ... among the several States," and that accordingly the provision was outside the commerce power and unconstitutional. In this year's case involving the Religious Freedom Restoration Act, the court held that Congress could not construct whole new grounds for its legislative authority by interpreting the Constitution in a manner that only three years before the Supreme Court had rejected. The result in the Brady Bill case is amply described in your opening.
       You raise "policy" and "constitutional" concerns with these decisions that I will address in a moment, but it is important to be clear that even your constitutional concerns are methodological, not substantive; you nowhere question the constitutional result in these cases, and from this I infer that you boisterously applaud the court's intent to take seriously constitutional limits on federal power. You're right: The court needed to draw a line on the commerce power somewhere--Lopez was a good point. RFRA was a brazen and unprecedented attempt by Congress to make its own (expansive) interpretations of the Bill of Rights paramount, and to open whole new sources of legislative authority; not a single justice approved the constitutionality of its action. As for the Brady case, surely state sovereignty means that state officers will not be made flunkies for implementing federal programs.
       All of these decisions were cautious, causing little if any disturbance in prior case law or current federal programs, yet signaling new resolve to enforce constitutional limits. Had the court ruled otherwise, the game would have been up; holding as it did, the court maintained a stable foundation from which it may approach more difficult questions of federal power.
       You express the "policy" concern that "cooperative federalism" might be threatened by the holding in the Brady case that the federal government can't dragoon state officers. Not to worry: Federal and state authorities can still "cooperate" the old-fashioned way--mutual agreement. You raise the possibility that Congress will respond to the Brady decision by "cutting the states out of the loop entirely"; this is your devilish way of encouraging the Supreme Court to impose limits under the Commerce Clause, so that this retaliatory response will be foreclosed and the nation will look even more to the states for important functions.
       You "admire" Justice Scalia and "agree with his methodology," as you have written elsewhere, but you fear that in the majority opinion in the Brady case he may have strayed off the reservation. Not so: The opinion describes the steps leading to the court's holding not as "ambiguous," but as "clear," "plain," "incontestable," and "far outweigh[ing]" any contrary indications. The Harmelin opinion does NOT limit constitutional restrictions to matters where the text "speak[s] to th[e] precise question" before the court, and no justice would so limit the court's role. In cases concerning the allocation of powers particularly, the court frequently resorts to history and constitutional structure to discern the spheres of government power. That said, even if the burden had shifted between Harmelin and the Brady case, I could see the argument for doing so: federal statutes are construed with a presumption against infringements of state sovereignty--why not the Constitution?
       Your final queries amount to one broad question that is key and difficult: If the Constitution's limits on congressional power are to be enforced, how and where will the lines be drawn? For starters, I believe it remains incumbent on the Supreme Court to ensure that Congress not exceed its commerce power. Do you, or do you regard the inquiry as too difficult and propose, therefore, that responsibility lies with Congress (and the president) alone? If so, how is Congress any better at drawing the line than the court, and would you apply the same rule to all congressional powers, so that, for instance, the court should never have taken up the question in the RFRA case? To address your specific queries: I am not sure what is meant by a "vision" of enumerated powers, and the notion that the "vision" might change with time--Congress' powers are set forth for all to read, in the same words as when written. Commerce, though, is fluid, and what affects interstate commerce today might not have 200 years ago. "Grinding to a halt" I always oppose, but the federal government reconsidering its minute regulation of American life? That would be welcome.
       I look forward to your reply.

JeffreyRosenis legal affairs editor of the New Republic and associate professor at the George Washington University Law School. Eugene Scalia is an associate with the law firm Gibson, Dunn & Crutcher LLP.