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Redefining Federalism

"We the People" ratified the Constitution to form a national government strong enough to establish justice, provide for the common defense and general welfare, and secure the blessings of liberty. Subsequent amendments expanded the power of the federal government, shifting power away from the states. Yet recently, the Supreme Court has aggressively limited federal protections for women, workers, disabled people and the environment, in a misguided attempt to protect the states. CAC’s Redefining Federalism project advances a vision of federalism that ensures states can act as the laboratories of democracy, while also allowing the federal government to address problems states cannot fully address alone.

Think Tank

In 2008, the nation was plunged into the worst financial crisis since the Great Depression, and in response, lawmakers established the Consumer Financial Protection Bureau. Since the CFPB's creation, opponents of financial regulation have sought to weaken its ability to protect the interests of consumers through both legislation and litigation. This White Paper provides background on the CFPB and then explains why the legal arguments against its constitutionality are all without merit.

With the Supreme Court poised to consider the review of marriage equality rulings by lower courts around the country, opponents of marriage equality have radically changed the thrust of their defense of state laws that deny same-sex couples the right to marry. Defenders of discriminatory marriage laws are now pressing a federalism/democracy argument, claiming that the people of a state have the authority to decide whether to place a badge of inferiority on same-sex couples and deny them the right to marry. As documented in this Issue Brief, this argument, which flies in the face of the Constitution’s text and history, is no more viable than prior arguments.

Living constitutionalism is largely dead. So, too, is old-style originalism. Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.

 If federalism is about protecting the States, why not listen to them? In the last decade, the Supreme Court has reworked significant areas of constitutional law with the professed purpose of protecting the dignity and authority of the States, while frequently disregarding the States' views as to what federalism is all about. The Court has ignored the views of the States in two directions: striking down federal laws despite the nearly unanimous opinions of the States that a federal role is appropriate, and invalidating State initiatives despite impassioned calls by the States about the ambiguity of the federal interest and the need for State innovation. The Court, according to the States, is protecting federalism both too much and too little.  Redefining Federalism is a book edited by Doug Kendall and published in 2004.

On September 29, 2011, CAC released "CAC Supreme Court Preview:  Tests of Government Power in the Supreme Court’s 2011 Term—With Even Bigger Cases on the Horizon."  In this issue brief, CAC previews cases that challenge the federal government’s constitutional authority to act to protect against sex discrimination in the workplace, Coleman v. Maryland Court of Appeals, and to conduct surveillance using modern technology, United States v. Jones, as well as the states’ ability to take regulatory action that purportedly conflicts with federal law, for example, Douglas v. Independent Living Center. We note that the likely blockbusters of the Term are cases challenging the constitutionality of President Obama’s health care reform law, defending Arizona’s controversial immigration law, attacking affirmative action policies, and asserting the rights of same-sex adoptive parents. By June 2012, this term may prove to be among the most momentous terms in recent decades.