A False Dawn for Federalism: Clear Statement Rules after Gonzales V. Raich

Abstract

The Supreme Court's 2005 decision in Gonzales v. Raich severely undermined hopes that the Court might enforce meaningful constitutional limits on congressional power. In the aftermath of Raich, some observers hoped and others feared that judicial limits on federal power might be resuscitated in Gonzales v. Oregon and Rapanos v. United States, the two most significant federalism cases of the 2005-2006 term. Oregon and Gonzales could potentially have constrained the virtually limitless Commerce Clause power that the Supreme Court allowed the federal government to claim in Raich. A less high-profile case, Arlington Central School District v. Murphy, addressed the scope of Congress' power to set conditions on grants to state governments under the Spending Clause. Although the federal government suffered setbacks in all three cases, none of them actually impose significant constitutional limitations on congressional power.

Oregon, Rapanos, and Arlington all involved challenges to assertions of federal regulatory authority that might run afoul of "clear statement rules." These doctrines require Congress to clearly indicate its intent in the text of a statute before courts can interpret it in a way that "raises constitutional problems," impinges on an area of traditional state authority, or imposes conditions on state governments that accept federal funds.

Part I briefly reviews the Raich decision and explains how it opened the door to virtually unlimited federal power under the Commerce Clause. I also discuss a parallel precedent that gave Congress equally unconstrained power under the Spending Clause, Sabri v. United States.

Part II shows that the major federalism cases of the 2005-2006 term fail to impose any constitutional limits on federal power, and also do not extend the reach of clear statement rules. Thus, the legacy of Raich remains intact. Indeed, all three decisions actually reinforce that legacy by emphasizing that Congress has the power to regulate almost any activity, but merely failed to exert it to the utmost in these specific instances.

Part III argues that clear statement rules are neither a viable nor an adequate substitute for substantive judicial limits on federal power. Raich poses a serious threat to the longterm viability of federalism clear statement rules. If congressional Commerce Clause authority is virtually unlimited, it is difficult to see how any assertion of that power can trigger a clear statement requirement by raising constitutional problems or by impinging on a policy area reserved to the states.

The last section of Part III shows that clear statement rules are an inadequate substitute for judicial enforcement of substantive limits on federal power. Clear statement rules sometimes protect the interests of state governments, but that is very different from protecting constitutional federalism. Indeed, state governments will often find it in their interest to support the expansion of federal power; courts applying clear statement rules cannot prevent this. In some situations, Judicial enforcement of clear statement rules might even give state governments additional incentives to promote the enlargement of federal authority.

Keywords: Raich, Gonzales, federalism, judicial review, constitutional law, war on drugs, public policy, Rapanos, Carabell, Oregon, Arlington Central

JEL Classification: H77, I18