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Commentary | PERSPECTIVE ON JUSTICE

And Federal Law Got Narrower, Narrower

The Supreme Court continues to limit the federal government's ability to deal with important issues.

May 18, 2000|ERWIN CHEMERINSKY | Erwin Chemerinsky is a constitutional law professor at USC

The Supreme Court's decision on Monday to strike down key sections of the federal Violence Against Women Act is the latest in a series of conservative rulings greatly limiting the ability of the federal government to deal with important national problems. In his first inaugural address, President Reagan proposed a dramatic change in American government with a vastly reduced role for the federal government and a shift of power to the states. Now five Supreme Court justices nominated by Reagan and his successor, George Bush, are carrying out this philosophy. As a result, countless federal laws, in areas ranging from civil rights to environmental protection, are vulnerable.

From 1937 until the 1990s, the Supreme Court broadly defined the scope of Congress' authority to deal with social problems and consistently rejected claims that the federal government had usurped the prerogatives of the states. In the 1990s, five justices nominated by Republican presidents--Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas--radically shifted course and, in the name of states' rights and federalism, have invalidated numerous popular federal statutes.

In the past decade, the court, in a series of 5-4 decisions, has imposed significant restrictions on the scope of Congress' constitutional authority to regulate commerce among the states and to protect civil rights. For example, in 1995, the court declared unconstitutional the federal Gun-Free School Zones Act, which prohibited having a gun within 1,000 feet of a school, as exceeding the scope of Congress' commerce clause power. Additionally, the Rehnquist court has ignored 60 years of decisions and held statutes unconstitutional if they impose significant obligations on state and local governments. In 1992, the court struck down a federal law that required state governments to clean up their nuclear waste. In 1997, the court invalidated the federal Brady Handgun Control Act that required that state and local law enforcement personnel conduct background checks before issuing gun permits.

Also, the court has granted state governments broad immunity from lawsuits in federal and state courts, even when they are violating valid federal laws. In the last year, the court has held that state governments cannot be sued in federal or state court for age discrimination or patent infringement or for violating federal labor laws.

Monday's ruling, invalidating the Violence Against Women Act's authorization of civil suits by victims of gender-motivated violence, continues this trend of narrowing federal power in the name of states' rights. Congress held extensive hearings and found that violence against women costs the American economy billions of dollars a year. Moreover, Congress found that state court systems often fail to provide adequate redress to victims of sexual assault and domestic violence. Nonetheless, the Supreme Court, in its 5-4 decision, held that violence against women is left to state governments to handle and is totally beyond the reach of federal powers.

The narrow interpretation of Congress' commerce power in Monday's decision makes laws as varied as the federal Endangered Species Act and the federal Child Support Enforcement Act vulnerable to constitutional challenge as having too remote an effect on the economy. Also, the court's holding on Monday that Congress cannot prohibit private violations of civil rights jeopardizes federal laws that prohibit hate crimes, that protect abortion clinics from violence and that outlaw conspiracies to interfere with civil rights. Literally hundreds of federal statutes, in every area of law, are likely to be challenged under the Rehnquist court's restrictive approach to federal power.

The irony is that presidents Reagan and Bush repeatedly attacked what they called judicial activism and promised to nominate justices who would practice judicial restraint. Yet, in striking down federal laws like the Violence Against Women Act, the Reagan and Bush justices are engaged in aggressive conservative judicial activism, overruling more than half a century of precedents and invalidating important federal statutes.

As the United States moves forward, it needs the national government to have the power to deal with national problems. Unfortunately, the majority on the court is using antiquated notions of states' rights that have been repudiated for decades to limit the authority of the federal government. How long this will continue, and how far it will go, almost certainly depends on the outcome of the next presidential election and who will fill the likely vacancies on the court. For now, though, the Reagan revolution is thriving.

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