The Strategic Use of Clear Statement Rules by the U.S. Supreme Court in Federalism Cases

Abstract

The judicial enforcement of federalism values is at the center of the judicial and political safeguards debate generated by National League of Cities v. Usery (1976) and Garcia v. SAMTA (1985). Although clear statement rules have long attempted to put substantive limits on federal power, it remains unclear whether the Burger and Rehnquist Courts differ from the Warren Court in their ideological use of clear statement rules. Prior literature infers that the moderate Burger Court enforced federalism canons with more vigor than the liberal Warren Court in order to limit federal interference and protect the states; and, that the Rehnquist Court adopted “super-strong” clear statement rules in federalism cases in a manner akin to the Burger Court, presumably for similar ideological reasons. Moreover, scholars have not fully examined if the Court has circumvented Garcia’s political safeguards approach by insisting that Congress speak clearly in statutory construction cases addressing federalism issues. It is plausible that the aggressive and ideological use of clear statement rules in federalism cases is positively correlated with outcomes limiting federal interference with state autonomy.

This study analyzes the use of clear statement rules by the Warren, Burger, Rehnquist, and Roberts Courts (1953-2010 Terms). Using logistic regression analysis and a dataset drawn from the Supreme Court Database and Westlaw, this study tests if the Burger or Rehnquist Court used clear statement rules more in federalism cases than the Warren Court, and for what ideological purpose. Of particular interest is determining if conservative Courts strategically use clear statement rules to protect states from federal incursions or to pursue ideological policy preferences. Thus, the analysis is directed at discovering if the Rehnquist Court has replaced Garcia’s political safeguards principle with a judicial safeguards approach by using clear statement rules, and whether that new federalism trend of judicial behavior has persisted in the Roberts Court.