NCPA - National Center for Policy Analysis

Supreme Court Rediscovers Federalism

September 17, 1999

Legal scholars have been encouraged to note that federal courts, including the Supreme Court, have in recent years been handing down decisions that strengthen the doctrine of federalism. This change of heart reverses a 50-year trend of Congress delegating legislative authority to unelected bureaucracies in administrative agencies.

Congress has also avoided judicial restraint by passing laws that abuse the Constitution's "commerce clause," applying it to cases with little or no connection to commerce. Under the Constitution, the federal government should be limited to a carefully defined role in solving problems beyond the effective control of the states. And in purely intrastate regulatory matters, only the states should establish and enforce regulations.

Now, the federal judiciary seems to be saying: "Enough!"

  • In U.S. v. Lopez in 1995, the Supreme Court struck down a federal law that prohibited possession of a gun within 1,000 feet of a school -- failing to find a reasonable interstate commerce association.
  • The Supreme Court decision in Loving v. U.S. in 1996 opened the way to challenging federal agencies which attempt to impose taxes -- a constitutional prerogative of the Congress alone -- under the guise of fees.
  • Most recently, in American Trucking Association v. EPA, a federal appeals court struck down the Environmental Protection Agency's new air quality standards -- reasoning that the agency's process of setting the standards amounted to an unconstitutional delegation of powers by Congress.

These decisions have apparently encouraged some members of Congress to reestablish that branch's authority over regulatory agencies -- and rein in the practice of delegating its powers to the agencies. For instance, the proposed Congressional Responsibility Act would require Congress to approve major agency rules and regulations before they become binding. Then there is the Taxpayers Defense Act, which would stop any tax levied by an administrative agency from going into effect unless Congress approves.

Also, there is the Federalism Accountability Act, which would require that Congress and regulatory agencies explicitly state the extent to which a bill preempts state or local laws and specify the reasons and constitutional authorization for doing so.

Source: Pete du Pont (National Center for Policy Analysis), "Government Control Thyself," Washington Times, September 17, 1999.

For text:


Browse more articles on Government Issues