Federalism: Dusting Off ‘Dignity’

Donald F. Kettl
Donald Kettl
Donald F. Kettl Donald F. Kettl is a Nonresident Senior Fellow at the Brookings Institution as well as Professor Emeritus and former Dean of the University of Maryland School of Public Policy

August 1, 2002

A few years ago, South Carolina business owners launched the Tropic Sea, a casino boat for “cruises to nowhere.” The boat has suddenly become a cruise to a very important somewhere—new limits on federal control of state policy.

The Tropic Sea sailed into an ongoing battle in South Carolina politics. While developers were launching ships like this one to lure tourists, several state legislators and local officials had been campaigning against them because of the gambling connection. When the Tropic Sea asked permission to dock at Charleston’s State Ports Authority Pier, the authority said no. The boat ended up at anchor in the harbor while its owners sought help from the Federal Maritime Commission. The commission sided with the boat owners but was overturned by a federal appeals court. Then the case went to the U.S. Supreme Court, where South Carolina argued that, as a state government, it wasn’t subject to the jurisdiction of the Maritime Commission. In a bitter 5-4 decision at the end of its term this June, the Supreme Court agreed.

Writing for the majority, Justice Clarence Thomas built his argument on the little-noticed 11th Amendment to the U.S. Constitution, which holds that the judicial power of the federal government does not extend to the states. In doing so, he was striking one more blow for “dual federalism”—a long-dormant idea that is now very much back in judicial vogue. For decades after World War II, crucial court decisions ignored dual federalism and made use of the “equal protection” clause of the 14th Amendment to justify virtually any federal intervention in state matters. But in a series of decisions by Chief Justice William Rehnquist, and especially with the most recent opinion by Justice Thomas, dual federalism has surged again.

In ruling for South Carolina, Thomas admitted that there was little textual evidence to support his position. Rather, he said, dual federalism was “embedded in our constitutional structure.” It helps uphold the “dignity” of the states as dual sovereigns. That, he said, is the core of the issue.

In fact, the “dignity” of the states is a new constitutional standard. The 11th Amendment explicitly applies to federal courts, not federal administrators. There is profound irony in the move by Thomas and the court’s other conservatives, who long criticized liberals for making law from the bench, to extend the 11th Amendment so dramatically beyond what it actually says.

However, the decision is consistent with much of what the Rehnquist Court has been saying. Over the past few terms, court majorities have gradually chipped away at federal power and worked to strengthen the role of the states. Every major decision on an issue of federalism has been by a vote of 5-4, built on the conservative bloc of Rehnquist, Thomas, Anthony Kennedy, Sandra Day O’Connor and Antonin Scalia. The disputes have become increasingly intense and, as New York Times reporter Linda Greenhouse put it, “These days, federalism means war.”

The battles have become so sharp, in fact, that a nominee’s views on federalism could become one of the critical issues in selecting the next Supreme Court justice. Whoever takes that next vacancy may determine whether the court remains on its current dual federalism course or backs away.

But just how far is the court prepared to go in pursuing dual federalism? It has already ruled that workers can’t sue states for discrimination under federal age and disability standards. It has protected states from suits by people claiming unfair competition from state activities in the marketplace, such as photocopying by state universities. Bit by bit, the court has extended state power in many directions at federal expense.

In the next term, the court will hear new cases that could even further expand state sovereignty. It will consider a case from Maine on whether states can force pharmaceutical companies to cut the prices of drugs sold to uninsured residents. In a Kentucky case, the court will rule on whether HMOs can be required by a state to accept any health care provider who agrees to the HMO’s contract terms. And it will consider a Nevada challenge dealing with whether states must give employees unpaid leave for emergencies.

Before long, however, the pursuit of state “dignity” and the precedents for federal equal protection are bound to have a direct collision. State protection against federal labor standards will crash into federal guarantees of civil rights and civil liberties. This may come in debates over family leave or prescription drug controls, in voting rights or transportation of nuclear waste. It’s clear that, at some point, the court will draw the line and hold federal interests paramount—but it’s not clear where or when the line will be drawn.

As political scientist Howard Gillman noted recently, federalism has become “the biggest and deepest disagreement about the nature of our constitutional system.” The disagreement will only intensify as we wade deeper into the real meaning of states’ “dignity.”