Modern Federalism

Introduction

Modern federalism refers to the constitutional allocation of power between the federal government and the states as it has evolved since the New Deal. The Rehnquist and Roberts Courts have significantly revised federalism doctrine, placing new limits on federal power under the Commerce Clause, enforcing the anti-commandeering principle, and reasserting state sovereignty under the Tenth and Eleventh Amendments. The New Federalism movement has reshaped the constitutional law of federalism.

United States v. Lopez

In United States v. Lopez (1995), the Supreme Court held that the Gun-Free School Zones Act exceeded Congress’s authority under the Commerce Clause. Chief Justice Rehnquist’s majority opinion identified three categories of activity that Congress may regulate under the Commerce Clause: the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect interstate commerce.

The Court held that possession of a firearm near a school was not an economic activity and that Congress could not regulate it based on its cumulative effect on commerce. Lopez was the first Supreme Court decision since the New Deal to strike down a federal law as exceeding the Commerce Clause power.

United States v. Morrison

In United States v. Morrison (2000), the Court struck down the civil remedy provision of the Violence Against Women Act, holding that gender-motivated violence does not substantially affect interstate commerce. The Court emphasized that the activity at issue was non-economic and that Congress could not regulate it based on its aggregate effect on commerce.

The Court also rejected the argument that Section 5 of the Fourteenth Amendment authorized the statute, holding that Section 5 authorizes only remedial legislation directed at state action, not private conduct.

NFIB v. Sebelius

In National Federation of Independent Business v. Sebelius (2012), the Court upheld the Affordable Care Act’s individual mandate as a valid exercise of Congress’s taxing power but held that the mandate could not be sustained under the Commerce Clause. Chief Justice Roberts’s opinion held that the power to regulate commerce among the states presupposes the existence of commercial activity to be regulated. The power to regulate commerce does not include the power to compel individuals to enter commerce.

The Court also held that the Medicaid expansion was unconstitutionally coercive under the Spending Clause because it threatened states with the loss of all existing Medicaid funding if they did not participate in the expansion.

The Anti-Commandeering Doctrine

The anti-commandeering doctrine prohibits the federal government from requiring state legislatures to enact federal programs or from requiring state executive officials to administer federal regulatory programs. In New York v. United States (1992), the Court struck down a federal law that required states to take title to low-level radioactive waste, holding that Congress could not commandeer state legislative processes.

In Printz v. United States (1997), the Court struck down provisions of the Brady Handgun Violence Prevention Act that required state law enforcement officers to conduct background checks. The Court held that Congress could not commandeer state executive officials to administer federal programs.

The Tenth and Eleventh Amendments

The Tenth Amendment provides that powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved to the states respectively, or to the people. The Tenth Amendment serves as a reminder that the federal government is one of enumerated powers.

The Eleventh Amendment bars suits against states in federal court by private parties. The Supreme Court has expanded state sovereign immunity beyond the Eleventh Amendment’s text, holding that states are immune from suits by private parties in federal court for violations of federal law, subject to exceptions including state consent and congressional abrogation under Section 5 of the Fourteenth Amendment.

Conclusion

Modern federalism represents a reassertion of constitutional limits on federal power. The Lopez and Morrison decisions limited the Commerce Clause, NFIB limited the spending power, and the anti-commandeering doctrine protects state sovereignty. These decisions reflect the Supreme Court’s ongoing engagement with the structural Constitution and the balance of power between the federal government and the states.