Federalism and the Court: Congress as the Audience?

Abstract

The Supreme Court's revival of federalism as a limit on national power has roots, in part, in the Court's mistrust of the national legislative process and its sense of institutional competition with Congress. To the extent that the Court is concerned about careless legislating, six rules of "care and craft" in drafting legislation are proposed for members of Congress to consider: develop a factual record, reflect the source of constitutional authority, tailor the statute to reach "national" and not "local" matters, consider the implications of decentralized enforcement for surviving constitutional challenges as well as for efficacy, consider whether state governments are treated comparably to the federal government, and be particularly cautious in efforts to overrule the effects of the Court's decisions. To the extent the Court is concerned with its own institutional prerogatives, however, or is committed to a categorical divide between areas constitutionally committed to the states and the federal government, care and craft alone will not be a solution.