Judicial Activism

The Federalist Society
2001


When President George W. Bush announced his first nominations for
the federal bench, he declared, "Every judge I appoint will be a
person who clearly understands the role of a judge is to interpret
the law, not to legislate from the bench. To paraphrase James
Madison, the courts exist to exercise not the will of men, but the
judgment of law. My judicial nominees will know the difference." Yet
despite this assurance, and the recent nominations of many
individuals meeting these qualifications to the federal bench, some
critics believe these Bush nominees are little more than ideologues,
adherents to a philosophy allegedly adopted by Supreme Court
Justices Rehnquist, Scalia, and Thomas of "conservative judicial
activism." This philosophy, which critics trace to the 1995 Lopez v.
United States decision, accuses conservatives of legislating from
the bench by ruling to overturn decades of precedent in areas such
as healthcare, disability law, environmental protection, and welfare.

As one of its first orders of business under Democratic control, the
Judiciary Committee has decided to investigate this debate by
examining the role of ideology and activism in the judicial process.
On Tuesday, June 26, New York Democrat Charles Schumer, the new
chairman of the Subcommittee on Administrative Oversight and the
Courts, held a hearing entitled, "Should Ideology Matter? Judicial
Nominations 2001." Senator Schumer called this hearing to determine
if a "rational consideration of ideology" should be taken into
account in the confirmation process. Schumer, who identifies
excellence, moderation, and diversity as other vital qualities in a
good judge, wonders if ideology should be as important a factor,
since judges are often the "ultimate test" in bipartisanship.
During the hearing, some panelists decried the Supreme Court for
having what they perceive as activist, ideological tendencies.
Harvard Law Professor Laurence Tribe expressed his view that this
Supreme Court has been the most activist in over 55 years and is
"utterly contemptuous" in its willingness to overturn acts of
Congress and step into the 2000 presidential election. University of
Chicago Law Professor Cass Sunstein spoke of how the Court has
limited Congressional power and invalidated legislation receiving
considerable bipartisan support. He believes the Court’s rulings
bear an "eerie resemblance" to the 1980 Republican Party Platform in
their ideological fervor. Marcia Greenberger of the National Women's
Law Center concurred, citing as examples the VAWA and Garrett cases
as examples of the activism of the current Court.

UCLA Law Professor Eugene Volokh refuted these charges of activism,
arguing that both the Supreme Court as a whole and its conservative
judges are well within the mainstream. The Supreme Court has
enforced the Bill of Rights and the structural constraints of the
Constitution, not legislated from the bench. Clint Bolick of the
Institute for Justice pointed out that many of the current court’s
decisions, concerning flag burning, gay rights, and campaign
finance, could hardly be characterized as "conservative" or
"activist."

These charges of "conservative judicial activism" will be further
explored by the Judiciary Committee. On July 11, Committee Chairman
Patrick Leahy will hold hearings to discuss the Rehnquist Court,
federal jurisprudence, and conservative judicial activism. Future
Judiciary Committee hearings will follow on the Senate’s role in the
judicial process, the burdens the nominees face in defending their
records in confirmation proceedings, and the significance of recent
Supreme Court federalism decisions.

For this June edition of HOT TOPICS, we present a bit more of this
debate on conservative judicial activism. Responding to an article
by Simon Lazarus that appeared in the Washington Post on June 3
charging the Rehnquist Court and Bush judicial nominees with being
"conservative judicial activists" are Milwaukee County Circuit Court
Judge Michael Brennan and Dr. Michael Greve, Director of the
American Enterprise Institute’s Federalism Project. Judge Brennan
and Dr. Greve attack Lazarus’ arguments and demonstrate why judicial
review is misunderstood to mean activism.


Don't Be Fooled. They're Activists, Too
By Simon Lazarus
Washington Post
June 3, 2001

With Senate gavels now in Democratic hands, we can expect an even
more intense struggle over President Bush's judicial nominees. Media
commentary has focused largely on whether the president will stick
with his campaign promise to appoint "strict constructionists" -- a
phrase that many Democrats take as code for Supreme Court appointees
who would overrule the 1973 Roe v. Wade abortion decision and roll
back other Warren and Burger court expansions of federal judicial
protection for individual rights.

This preoccupation with the Warren-Burger legacy is behind the
curve. Some of Bush's nominees -- those announced so far and those
to come -- have a far more radical and ambitious agenda.
In the past few years, a new constitutional philosophy has attracted
numerous adherents on the political right, including at least three
members of the Supreme Court. Unlike their conservative
predecessors, they are not only interested in undoing the past work
of "activist" liberal judges. In the name of an elaborate if quirky
theory of "federalism," this group targets the New Deal, the Great
Society and, above all, Congress itself. Their brand of judicial
conservatism is avowedly activist: Its most prominent exponent,
Justice Antonin Scalia, has written, "I am not a strict
constructionist, and no one ought to be."

Scalia's allies are numerous and increasingly influential. Many are
members of the Federalist Society, which was founded only 20 years
ago by a handful of conservative law students as an antidote to a
liberal philosophy that they felt was pervasive in the nation's
legal adversaries. While the society itself is a loose confederation
of conservatives and libertarians based primarily at law schools,
the writings and work of its members and like-minded thinkers show
that they would try to use the federal courts to micromanage
economic and social regulation, regardless of which party the
electorate chooses to control Congress or the White House.
If their theory of federalism were fully implemented, the results
would startle liberals, centrists and a good many conservatives as
well. Venerable laws and regulations in vital sectors such as
health, environmental protection, telecommunications and welfare
would be struck down or rendered unworkable. Major current proposals
-- including Bush's national education standards or social
conservatives' national ban on partial-birth abortion -- would not
survive court challenge.

Scant notice has been taken of the implications of this new form of
jurisprudence, even though its principles are boldly proclaimed in a
series of 5 to 4 Supreme Court decisions dating back to 1995, in
rulings by federal appellate courts, as well as in the published
work of scholars at think tanks and law schools. So far, the Supreme
Court cases that articulate this new credo have involved relatively
marginal laws or circumstances. The $64,000 question is whether
these decisions will turn out to have been the first phase of a
stealth strategy, reminiscent of how the post-World War II Supreme
Court moved gradually, case by case, to dismantle the legal
framework of racial segregation, before discarding it altogether
in1954's Brown v. Board of Education.

To get a fix on where this strategy could lead, a revealing source
of clues is where it began, the Supreme Court's 5 to 4 decision in
United States v. Lopez. In this 1995 case, the court ruled that
Congress lacked power under the Constitution's interstate commerce
clause to enact the Gun-Free School Zones Act of 1990, which banned
possession of a firearm within 1,000 feet of a school. Public
reaction to the ruling was muted, largely because its actual impact
was trivial; Congress promptly revised the measure, adding
boilerplate findings that interstate commerce was substantially
affected by school violence.

But the narrow scope of Lopez is not as important as Chief Justice
William Rehnquist's rationale in his majority opinion. His aim was
to staunch any possibility that regulating school violence might be
a stalking-horsefor "direct" regulation of the "educational
process," such as a "mandated federal curriculum for local
elementary and secondary schools."

In Rehnquist's theory, elementary and secondary education are
exclusively state matters, off-limits to Congress. So where does
that leave the centerpiece of the president's education bill --
mandated federal testing and accountability?

So far, Bush's education reformers have not panicked at the chief
justice's remarks in Lopez. Presumably, their lawyers have advised
that Congress will not justify mandating uniform national tests on
the basis of the commerce clause, but will link it instead to
federal school funding -- and thus to Congress's constitutionally
broad discretion to spend for the "general welfare." But that advice
may prove undependable, once advocates of hermetic federal-state
separation take secure control of the federal judiciary.

Already, Judge J. Michael Luttig of the 4th U.S. Circuit Court of
Appeals in Richmond, one of the most outspoken advocates of the new
judicial federalism, has championed construing the spending clause
narrowly to prevent federal "expropriation" of state "sovereign
rights," such as control over education. Northwestern University law
professor Gary Lawson has observed, in the Harvard Law Review, that
the Constitution "contains no 'spending' clause as such."

Two months ago, in a spending clause decision that is still
reverberating in national health policy circles, U.S. District Judge
Robert Cleland of Michigan barred Medicaid beneficiaries from suing
state agencies that dispense Medicaid dollars. Cleland emphasized
that the secretary of Health and Human Services can withhold
Medicaid funding from states that violate federal requirements, but
this "remedy" is a weapon that HHS has never used. If Cleland's
ruling stands, patients will be left with no practical means of
ensuring that state governments actually deliver the benefits to
which they are entitled. It would be rash to dismiss Judge Cleland's
decision as extreme or aberrant. His opinion closely tracked a brief
submitted by Jeffrey S. Sutton, a prominent Federalist Society
member who has argued several important federalism cases in the
Supreme Court and is Bush's nominee to serve on the 6th U.S. Circuit
Court of Appeals in Cincinnati. Moreover, rendering Medicaid
unworkable would not trouble many judicial federalists; on the
contrary, they strongly oppose the very type of cooperative
federal-state power-sharing structure typical of many New Deal and
Great Society programs, as well as Medicaid.

As explained by Michael Greve, director of the Federalism Project of
the American Enterprise Institute, although American federalism is
"in practice" a cooperative federalism, supported by a "broad
political and scholarly consensus," it is nevertheless a "terrible
idea." Greve wants the federal judiciary not only to give the states
exclusive authority over designated areas; he would also have the
courts bar the states from delegating their authority back to the
federal government -- precisely to force state health,
environmental, safety, welfare and similar programs to compete in
regulatory "races to the bottom."

So how should Senate Democrats respond when Bush sends over his
judicial nominations? Before turning to the individual appointees,
the Democrats should use their new control of the Senate Judiciary
Committee to schedule hearings aimed at clarifying the velocity and
real-world impact of this new judicial ideology. Such hearings would
generate light as well as heat – a necessary and fitting way to
handle a truly historic moment.

Washington lawyer Simon Lazarus served on Jimmy Carter's domestic
policy staff.


"Conservative Judicial Activism": More than Whose Ox is Being Gored
by Michael B. Brennan

Brennan is a judge on the state trial court in Milwaukee, Wisconsin.
In a June 3, 2001 Washington Post article, Simon Lazarus joins the
cries, increasing in pitch and in number, of "conservative judicial
activism." He criticizes a majority of the Supreme Court in effect
for "second-guessing" Congress when the Court strikes down laws.
Labeling recent federalism decisions by the Court as "quirky,"
Lazarus accuses conservatives of using the federal courts to
"micromanage economic and social regulation."

Lazarus confuses proper judicial review with activism. The Rehnquist
Court is not – and correct thinking Bush judicial appointees will
not – engage in right-wing Justice Brennan-ism. Only in a
result-oriented world is finding a law unconstitutional necessarily
judicial activism.

Lazarus lays out a parade of horribles that he asserts will be the
consequences of the Court’s recent federalism decisions, without
ever defining "activism." "Activism" can be defined as courts that
are willing to overstep the bounds of the Constitution, or
unquestionably constitutional laws, to impose their will on the
other branches of government and the people themselves.
Two areas of constitutional law in which cries of "conservative
judicial activism" recently have been heard are (1) Congress’s
Commerce Clause, and (2) the extent to which Congress can define the
sovereign immunity of the states from lawsuits brought in state or
federal court. But decisions like United States v. Morrison, 529
U.S. 598 (2000), interpreting the Commerce Clause, and Board of
Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2000), in the
context of state sovereign immunity, do not substantially shift
power from the federal government to the states, and do not meet the
definition of "activism" proffered above.

Commerce Clause

In Morrison, decided in May 2000, the Supreme Court could not find
support in Congress’s claim that the Violence Against Women Act
("VAWA"), Subtitle C, was based on the constitutional power "to
regulate commerce among the several states." Accordingly, the Court
held that the federal civil remedy created in VAWA was
unconstitutional in light of the recent reinterpretation of the
Commerce Clause in United States v. Lopez, 514 U.S. 549 (1995). The
Court reasoned that just because rape has economic impacts does not
mean that Congress was "regulating commerce" when Congress passed
VAWA. VAWA regulates non-economic activities that do not
substantially affect interstate commerce. The Court found Congress’s
limited and conclusory findings insufficient to establish a
constitutionally significant nexus between the effects of
gender-related violence and interstate commerce. The Court rejected
the argument that long-term economic effects of crime could provide
a basis for a showing that VAWA regulates interstate commerce. Were
that permitted as a basis for jurisdiction, Congress could exercise
plenary authority over all activity, rather than be restricted to
its enumerated powers, because all conduct when aggregated has a
ripple effect on the economy. To allow Congress to pass laws on
anything that affects interstate commerce, no matter how remote,
would give Congress unlimited power. Yet the Constitution only gives
Congress power over 18 particular subjects: armies, bankruptcy,
interstate commerce, etc. To uphold the federal civil remedy in VAWA
would eliminate all limits on federal power and intrude on
traditional areas of state concern, the Court ruled.

The Court in Morrison also found no authority in Section 5 of the
Fourteenth Amendment for the civil suit provision because it
purports to regulate private, not state, actions.

The rule of Morrison is straightforward: When Congress enacts a law,
that law must be based on one or more of the enumerated powers in
the Constitution. If the law is not within the scope of an
enumerated power, the law is unconstitutional and void.
Because VAWA is a well-meaning legislative initiative, and enjoyed
broad, bipartisan support, critics like Lazarus take to task an
unelected judiciary for invalidating a law designed to prevent
inhumane acts of violence, like rapes. But numerous times over the
last 50 years the Supreme Court has done exactly that: impose limits
on states’ efforts to punish crime. See, e.g., Miranda v. Arizona,
384 U.S. 436 (1966).

That the Supreme Court requires congressional initiatives like VAWA
to fall within constitutionally-delegated powers is not
"conservative judicial activism." Unlike in Lopez, VAWA contained
detailed findings designed to show that it did have commercial
qualities national in scope. But these findings did not alter the
outcome of the case. Stacking one inference on top of another does
not transform an intrastate rape into an act of interstate commerce.
Under such reasoning, any lawmaker could contend that any in-state
activities will have a ripple effect that ultimately affects
commerce. Such thinking would read the Tenth Amendment — which
provides that all powers not assigned to the federal government are
reserved to the states or the people — right out of the
Constitution. And it would make irrelevant every other of the 17
enumerated delegations of power to Congress under Article I of the
Constitution.

Morrison was an important victory for limited government in the
United States. The Constitution is full of countermajoritarian
rights to preserve the freedom of citizens against government
intrusion; indeed, the Constitution guarantees liberty by
incorporating federalism. Morrison shows that the Supreme Court
takes seriously and will enforce the separation of powers between
federal and state governments. When judicial review resets the
constitutionally required balance between those dual sovereigns, it
is not activism. The Court is not activist when it requires Congress
to draft its laws in light of constitutional requirements. This is
the first duty of those who monitor representative government, in
particular of the judiciary.

State Sovereign Immunity

In March 2001 the Supreme Court decided Board of Trustees of the
University of Alabama v. Garrett, and ruled that the Eleventh
Amendment, which since 1890 has been interpreted to bar suits by
citizens against their own states, precluded state employees from
recovering money damages from Alabama under the Americans with
Disability Act ("ADA").

Criticisms of the Court’s decision came fast and were furious.
Professor Larry Kramer of the New York University Law School accused
the Court of asserting "the primacy of its views over those of
Congress." He termed the decision one "seizure of legislative
authority" among many by the Court over the last decade, and
characterized the Court as having ignored "the considered judgment
of other government institutions." E.J. Dionne of The Washington
Post pronounced that the Court had "decided that it had more power
than the people’s branch of government, Congress," and warned that
"we are witnessing the rise of a new conservative judicial activism."

A New York Times editorial accused the Court of usurping
Congressional power, and of a "self-aggrandizing view of federalism"
which "has already inflicted significant damage on the nation’s
constitutional framework." "[T]he structural impact of the court’s
ruling was to expand its own power at the expense of Congress’s
rightful constitutional authority to decide which new laws society
requires," the Times wrote.

Did the Supreme Court in Garrett leap the constitutional divide from
interpreting the Constitution and federal statutes to legislating
public policy? The Court did no such thing. The reasoning in Garrett
does not violate the separation of powers, nor will the decision
result in the parade of horribles the critics list.

The Eleventh Amendment guarantees that a private individual may not
sue a nonconsenting state in federal court. A state may waive this
immunity and consent to being sued. In certain circumstances
Congress may even revoke a state’s sovereign immunity, but only
pursuant to a valid exercise of Congressional power.

When is such a revocation valid? When Congress legislates to enforce
substantive constitutional guarantees — like equal protection of the
laws — in response to state wrongs, like state-sanctioned racial
discrimination. A constitutional violation that lacks a remedy would
empower Congress to legislate, and subject a nonconsenting state to
a lawsuit for money.

In Garrett the Court determined that Congress did not have such
power with regard to the ADA. While Congress had offered a few
examples of discrimination in the ADA’s legislative record, it had
not identified a pattern of irrational state discrimination in
employment against the disabled. Even assuming such a discriminatory
pattern, the Court was not satisfied that the ADA provided the
proper remedies for such injuries.

The Court’s decision in Garrett turned on its constitutional
interpretation. There the cries of judicial activism arose. Critics
cannot stomach that the Court would rule against such a worthy cause
as compensating for discrimination against the disabled. To the
critics, the ADA merely provides a remedy for what must be a
constitutional wrong.

The result in Garrett is no great horror. The holding is merely
this: Congress does not have the power under Section 5 of the
Fourteenth Amendment to make states liable for money damages under
the ADA. Nothing in Garrett precludes the citizens of any states
from adopting their own versions of the ADA. The Supreme Court’s
decision in Garrett did not remove policy questions from the
process. Rather, it simply refused to ignore the words of the
Constitution, no matter how worthy the public policy.
What these critics actually cry for is their preferred result,
regardless of whether the law leads there or not. Garrett is not an
example of "conservative judicial activism." It is an example of
proper judicial interpretation of the Constitution and federal
statutes.

Judicial Review is not Judicial Activism

The reasoning and results in Morrison and Garrett show the Supreme
Court requiring Congress to base its laws in the Constitution, and
ensuring that Congress, the Court’s co-equal branch, respects the
states. Legal reasoning that could result in truncating a small part
of Congress’s power is not activism. It is not second-guessing. It
is a check in the balance of the separation of powers.

Judicial conservatives should never legitimize the activism engaged
in by judicial liberals, either in the past or should they come to
power again, by engaging in the same behavior. That being true,
justices and judges faced with activist legislatures are not
required to roll over in the name of judicial restraint. This would
leave in place a one-way ratchet of constantly expanding government.
Some commentators want constitutional law to be just that one-way
ratchet wrench. As long as "rights" were being read-into the
Constitution, they were silent.

Lazarus’s worry that "entitlements" will be abridged by judicial
decisions is result-oriented. In these decisions courts are
resolving the foundational question of whether or not government may
constitutionally be involved in an area. The Supreme Court is taking
seriously that the Constitution is a limiting document; that it
establishes a national government of limited and enumerated powers
and reserves all other powers not enumerated to the states and to
the citizens.

Reading Lazarus’s criticisms, one cannot help but conclude that the
problem he has with recent Supreme Court decisions is their return
to a proper understanding of separation of powers. By properly
interpreting the Constitution in areas like the Commerce Clause and
state sovereign immunity, the Supreme Court has revived the
constitutional Framers’ design for limited and accountable
government. It is the Supreme Court’s replacement of the federal
government’s powers within their proper, constitutional tracks that
results in Lazarus’s criticism.

Remember a few years back when commentators like Lazarus were
rushing to the aid of certain federal judges, hoping to shield them
from criticism for activist decisions? Isn’t it ironic that in the
fall of 1997 the American Bar Association issued a report which
openly warned about the dangers of criticizing the judiciary? The
report recommended that state and local bar associations develop
ways to defend federal judges from "misleading criticism." Now, a
commentary like Lazarus puts into print exactly that.

Why these assertions must be rebutted

Allegations like Lazarus’s of "conservative judicial activism" must
be debunked, not just because they are false, but because not to do
so concedes ground to the argument that "the left never ruled that
way, but if it did, and to do so is wrong, the right is now doing it
too." Such a language of debate assumes no judicial neutrality; that
judges are mere political animals. The rule of law should not be
subject to litmus tests, which tells America’s citizens that judges
are not neutral arbiters. Such malleability in the rule of law would
reflect a political character to the Constitution that the Founders
never envisioned.

As Justice Scalia has pointed out, that view is also incompatible
with the purpose of a Constitution, whose meaning is not committed
to a majority will. Rather, it is against the majority will that the
Constitution is meant to protect. Left unrebutted, allegations of
"conservative judicial activism" can warp the already murky public
understanding of the courts’ role in our constitutional system.
The rule of law is about providing a neutral, predictable set of
rules for everyone. President Bush is committed to appointing judges
who share this view, not judges who will legislate from the bench.
Any judge who wants to legislate from the bench, whether from the
left or the right, should not be confirmed by the Senate.


A version of this draft will appear as Federalism Outlook #7 (July,
2001), published by the AEI Federalism Project
(www.federalismproject.org)

Recent federal court decisions have wiped out private entitlements
under Medicaid and civil rights statutes. Real Federalism (AEI
Press, 1999) anticipated these rulings two years ago, but cautioned
that the judiciary might not be willing to pursue the logic of the
Supreme Court’s federalism decisions to the point of slaughtering
such sacred political cows. That caveat has proved unnecessary.
With the prompt fulfillment of Real Federalism’s then-quite-daring
prediction, I may soon have to find a new federalism riff. Renewed
attacks on the Court’s "activist" federalism decisions, however,
provide occasion to examine the impact of the Justices’
sea-changing, but widely underestimated, statutory decisions on
federalism—and to afford them a firmer defense than they have
received to date.

FEDERALISM, YES. ACTIVISM, NO.

In anticipation of impending fights over judicial nominations,
liberal pundits and advocates have renewed their attacks on the
Supreme Court’s supposedly "activist" federalism decisions. The
Washington Post, for example, has outed Mr. Jeffrey Sutton, a
prominent federalism attorney and a nominee to the Sixth Circuit
Court of Appeals, as a rabid "activist" and placed him in the
disreputable intellectual company of the AEI Federalism Project.
Unlike earlier, overwrought complaints about an impending return to
an "ante-bellum jurisprudence" or perhaps the Articles of
Confederation, the current liberal denunciations are directed
primarily at the Rehnquist Court’s interpretation of federal
entitlement statutes (such as Medicaid and the Americans With
Disabilities Act), rather than its constitutional rulings. As
patient Outlook readers are about to discover, such statutory
federalism cases are arcane and, moreover, fantastically boring.
What the cases lack in sex appeal, however, they make up in
frequency (they are much more common than constitutional rulings)
and in real-world impact. Judicially enforceable entitlements to
welfare, housing, clean air, equality, wheelchair ramps, and a
harassment-free environment are the engine of the nanny state—and of
federalism’s destruction. Each federal entitlement enables some
constituency to run into court and demand that state and local
governments provide services secured, more or less clearly, under
federal law. That phenomenon is what mayors and governors have in
mind when they complain, with considerable justice, about federal
"mandates" and "commandeering."

Over the past two decades, the Supreme Court has brought the
entitlement engine to a halt. Liberals are right in observing that
the Rehnquist Court’s anti-entitlement decisions have worked a large
change in federalism’s architecture and operation. They are also
correct in characterizing the accumulated precedents as a wholesale
reversal of the Brennan Court’s entitlement-friendly jurisprudence
(with the possible exception of race-based preferences, the only
reversal of the Brennan legacy by this allegedly conservative
Court). In the relevant, substantive sense, however, the "activism"
charge is very nearly the opposite of the truth. Far from enlarging
the federal judiciary’s role, the purpose and effect of the
Rehnquist Court’s statutory federalism is to limit that role and to
commit the pursuit of national purposes where it belongs—to the
political branches of government.

Un-Entitled

With few exceptions (most important, the Social Security retirement
program), federal entitlement statutes, as well as many regulatory
programs, are administered by state and local governments. The
generic federal statute provides some money for state or local
entities, provided that those governments agree to administer the
federal program in accordance with federal guidelines and
restrictions. Medicaid, the Clean Air Act, and virtually all major
education statutes function on these principles of "conditional
spending" and "cooperative federalism."

The question, so far as the federal judiciary is concerned, is the
extent to which the terms of the federal-state bargains may be
enforced, in federal court, by private parties (typically, advocacy
groups that litigate on behalf of the constituencies Congress
intended to benefit). That question is fundamentally "about"
federalism. Increased exposure to private litigation means more
subjugation of state and local governments, and less federalism.
Conversely, fewer entitlements mean more federalism.
In a sharp departure from the state of the case law, circa 1980, the
Supreme Court has taken a restrictive view of the courts’ role in
enforcing federal mandates. A good example of this perspective is
U.S. District Judge Robert Cleland’s March 2001 ruling in Westside
Mothers v. Haveman. Relying on the capable advocacy of Jeffrey
Sutton, who served as an amicus attorney in the case, Judge Cleland
determined that federal law provides no private rights or
entitlements for Medicaid recipients. The task of ensuring that
states observe Medicaid rules and guidelines falls to the Secretary
of Health and Human Services (HHS), not to private litigants or
federal courts. With that ruling, Medicaid administration shifts
from litigation-driven management under the watchful eyes of
advocacy groups and federal judges to a bargaining process between
the state and HHS.

Westside Mothers rigorously applies the Rehnquist Court’s
accumulated precedents on federal entitlements, which hold that
courts should decline to find and enforce statutory entitlements
unless Congress has unmistakably expressed an intent to provide for
judicial review. This so-called "clear statement rule" governs a
wide range of legal issues.

Private rights. Suppose the federal government provides money to
state or local governments, with instructions to "do (or not to do)
X"—for example, not to discriminate on the basis of race, sex,
handicap, national origin, ethnicity, etc. etc.: may private
litigants may sue the recipients of federal funds to observe those
instructions?

Departing from precedents that liberally discovered "implied"
private rights of action in funding conditions, the Rehnquist Court
has held that state and local governments are exposed to private
lawsuits only when Congress has clearly stated, in the language of
the statute itself, that it intended such exposure. The latest
example—and another offense on the part of Mr. Sutton, who argued
the case to the Justices—is the Supreme Court’s April 2001 decision
in Alexander v. Sandoval. Alexander holds that civil rights
plaintiffs may not sue state and local agencies over practices that,
while not intentionally discriminatory, have a "disparate impact" on
racial minorities. Federally funded agencies are prohibited from
engaging in such practices under Title VI of the 1964 Civil Rights
Act, a civil rights statute heretofore subject to a very liberal,
pro-plaintiff judicial construction. Departing from that
construction, the Court held that the disparate impact provisions of
Title VI can only be enforced by the federal government itself, not
by private litigants.

Section 1983. Dissenting in Alexander, Justice Stevens criticized
the majority’s holding as pointless: after all, he argued,
plaintiffs could always bring an identical suit under Section 1983,
Volume 42 of the United States Code. That provision, enacted in 1871
to ensure the availability of federal civil rights remedies, opens
federal courts for private lawsuits against "every person who, under
color of [law]," violates "rights, privileges or immunities secured
by the [federal] Constitution and laws."

That once-open window, however, has probably closed. In a 20-year
campaign to limit 1983 actions, the Rehnquist Court has determined
that state governments are not "persons" within the meaning of
Section 1983, and therefore cannot be sued under it. It has also
held that detailed statutory provisions for enforcement by the
federal government, such as financial sanctions and lawsuits against
non-compliant state and local governments, preclude 1983 actions.
Since practically every federal statute that envisions state or
local implementation, including Title VI, also contains some
non-private enforcement mechanism, an expansive interpretation of
the precedents would obliterate Section 1983 enforcement.
Spending. The Supreme Court has indicated, and will likely soon
hold, that federal programs enacted under the Constitution’s
"Spending Clause" are not the supreme law of the land, and therefore
unenforceable in federal court unless a state has specifically
waived its defenses against private lawsuits.

That seemingly perplexing proposition is exactly right. Laws enacted
under an "enumerated" power, such as the congressional power to
regulate interstate commerce, trump every conflicting state or local
law. That is why and how they are "supreme." Spending Clause
statutes, in contrast, do not trump anything at all. They are
contractual, rather than coercive and preemptive. They owe their
force to the states’ acceptance of the money, not to their nature as
a federal enactment.

This perspective entails a very narrow view of the rights of private
parties—and of the role of the courts—in enforcing the terms of
state-federal contracts. Again, Westside Mothers provides an
illustration. Relying on the Supreme Court’s just-mentioned
decisions on Section 1983, the district court reasoned that the
"rights" that are "secured by law" under Section 1983 must be rights
that were recognized in 1871, when the provision was enacted.
Medicaid and similar Spending Clause statutes, however, do not
"secure" any rights at all, except among the contracting
governments. The private beneficiaries of federally funded,
state-administered programs are merely the incidental, third-party
beneficiaries of a contract; and, whatever we may now think of
third-party rights, they weren’t part of the legal landscape in
1871. If Michigan denies Medicaid benefits to individuals Congress
might have considered eligible, too bad. Unless the state has
unequivocally consented to third-party enforcement, the dispute is
strictly between Michigan and the federal government.

One Dang Thing After Another. The Supreme Court’s anti-entitlement
doctrines are connected, such that plaintiffs who manage to evade
one obstacle are bound to stumble over another. Plaintiffs who
escape from restrictive statutory interpretation into Section 1983
will find that route, too, strewn with obstacles. They may find that
their purported right was unrecognized in 1871. Or, they may find
that their claims for monetary damages—which are often the only
effective means of forcing state and local governments into
compliance—are blocked by a slew of Supreme Court decisions granting
the states sovereign immunity against such lawsuits. (Even the
Americans With Disabilities Act can no longer be enforced through
damage judgments.) Let plaintiffs argue that the state has waived
its immunity by accepting federal funds, and they will lose. Let
plaintiffs seek to obtain relief by naming a state’s officers,
rather than the state itself, as a defendant, and they will find
that this so-called Ex Parte Young rule, once readily available, has
become a rare exception. True federalism aficionados, no doubt,
would relish further illumination on the delicate interplay between
Section 1983, the Eleventh Amendment, and Ex Parte Young provides
endless fascination. But we must move on.

True Activism

The Rehnquist Court’s statutory federalism limits the judiciary’s
role in the administration of federal entitlement statutes, unless
Congress has unmistakably provided for such a role. Whatever the
merits of that jurisprudence (about which more in short order), it
cannot be described as "activist." For true activism, one must look
to the entitlement jurisprudence that the Rehnquist Court has
effectively dismantled—Justice William Brennan’s.

While the late Justice William Brennan is best remembered for the
creative discovery of new rights under a "living Constitution," his
proudest accomplishment was to enlist the federal judiciary in the
expansion of the national welfare state. Throughout the 1960s and
1970s, the Brennan Court eagerly expanded the ability of private
litigants, especially the intended beneficiaries of congressional
statutes, to find their way into the courthouse and, having entered,
to prevail. Implied private rights of action, for instance, were the
Brennan Court’s creation. When that M.O. hit its limits, Justice
Brennan discovered that Section 1983 as an all-purpose vehicle to
make a federal case of alleged violations of garden-variety federal
statutes—a thought that had not occurred to anyone for over a
century since the enactment of Section 1983. The only Supreme Court
decision ever to find that Congress could abrogate state immunity
under its Article I powers was penned by Justice Brennan. And so on.
Brennan’s ideological agenda had a kernel of truth: a Congress bent
on expanding government confronts massive agency and monitoring
problems. Congress can make a commitment to provide housing and
financial assistance for the poor, but it cannot easily ensure that
government agencies translate those commitments into practice. The
difficulty of prodding and monitoring administrators particularly
acute when federally funded programs are administered, as most of
them are, by state and local governments. Since those agencies
usually like the federal money better than the restrictions that
come along with it, they may ignore or violate funding conditions
and, in setting priorities, violate the intent of Congress, if not
the letter of the law.

Brennan found the solution to these problems—in himself, and his
colleagues. His move was accompanied much judicial throat-clearing
about "deference" to Congress and "the rule of law." The will of the
Congress is the law of the land: who better to enforce it on the
land than the federal courts? And how could the courts enforce the
law, if not at the instigation of the private parties Congress
intended to benefit? Brennan’s ostensibly deferential approach,
though, hid an exceedingly tendentious agenda.

Every federal spending statute reflects a compromise somewhere
between the legislative "purposes" and commands and, on the other
hand, congressional appropriations and enforcement provisions. For
instance, the Clean Air Act commitment to absolutely, totally clean
air (Now!!) implies a level of industrialization we surpassed some
time between Jamestown and Salem. Congress has rendered the act safe
for America by building slack into the enforcement process and by
depriving the EPA and the states of sufficient funds to enforce the
statutory mandates. Similarly, the congressional decision to provide
for the enforcement of Title VI by the federal government—but not
private parties—reflects a concern that ambitious legislative
commands, left to the unchecked discretion of private enforcers,
might easily produce over-enforcement and results that even the most
zealous legislators did not intend. It is one thing—though probably
not an entirely sensible thing—to instruct the federal Office for
Civil Rights to see to it that school administrators provide
protection against sexual harassment among students. Providing
six-year-olds with a federal cause of action for a peck on the cheek
is a different thing altogether.

Judicial review, though, focuses only on one half of the bargain—the
statutory language—and enforces that purported command, "whatever
the cost." Thus, even when faithfully practiced (an aspiration that
did not rank high among Brennan’s priorities), judicial enforcement
of federal entitlements—where Congress has not explicitly provided
for it—introduces a systematic bias towards program expansion.
And who, pray tell, will sue to ensure the observance of
congressional "intent" of federal programs—say, Medicaid? Why, that
would be either Medicaid providers (such as hospitals) who insist on
more generous reimbursements, or else, Westside Mothers. Whoever
those mothers might be, they are sure to be Medicaid Expansion
Mothers. Privately initiated judicial oversight introduces a gross
selection bias. It is not really "oversight" at all but rather an
adverse possession of governmental programs by special-interest
constituencies. Justice Brennan was fully aware of that bias; the
point of his entitlement jurisprudence was to institutionalize it.
In that pursuit, Brennan was assisted by an eager Congress. Statutes
that hand public programs over to private litigants and
courts—without explicitly saying so—allow legislators to curry favor
with interest groups while avoiding responsibility for economic
costs and the erosion of local autonomy. When the local library is
compelled to spend more money on accommodating the disabled than it
spends on books, as on all of the rare occasions when some segment
of a rationally ignorant public wakes up to the consequences of
federal statutes, Congress can deflect the blame on advocacy groups
who brought suit under the Americans With Disabilities Act (ADA) and
the federal judge who let them prevail. Advocates and judges, for
their part, can protest that they are only doing the will of the
Congress. We know that the PGA Tour must accommodate Casey Martin
and his golf cart. We have no earthly idea whether that is the
responsibility of the Congress that wrote the ADA, or the Justices
who interpreted it. Far from ameliorating agency and monitoring
problems, judicial intervention maximizes irresponsibility and
unaccountability all around.

Statutory Federalism

So long as liberals directed their "activism" charge at the
Rehnquist Court’s constitutional federalism decisions, sober minds
could readily reply that the national regulatory state will surely
survive the judicial invalidation of congressional press releases
that masquerade as laws, such as the Gun Free School Zones Act
(struck down in U.S. v. Lopez, 1995) or the Violence Against Women
Act (invalidated by U.S. v. Morrison, 2000). In contrast to those
symbolic decisions, however, the Rehnquist Court’s statutory
federalism decision have had a real effect. They have measurably
increased the autonomy of state and local governments, diminished
the role of special-interest advocacy groups, and increased the
accountability of the Congress.

That shift spells neither the end of the welfare state nor an
"activist" judicial arrogation of power. The central theme of the
Rehnquist Court’s statutory federalism is democratic responsibility
and accountability. Congress remains free to create private
entitlements and to impose corresponding mandates on the states—so
long as it clearly informs the states of their obligations. If
Congress lacks the will or the votes to expose states to private
enforcement, it can provide for enhanced federal agency oversight
over the states or else, administer welfare statutes with the
federal government’s own money and bureaucrats.
Liberal jurists and pundits have denounced that stance as
"undemocratic," meaning that it often deprives the nanny state’s
constituencies of access to federal courts. Even leaving aside the
strange notion of federal lawsuits as a vehicle for democratic
government, though, no sentient citizen believes that those
constituencies lack access elsewhere in the political system. The
preposterous charge—peddled, in the wake of Westside Mothers, by a
gaggle of liberal advocacy groups and columnists—that
anti-entitlement decisions will render the welfare state
"unworkable" merely hides a suspicion that political responsibility
correlates inversely with the scope of government. Under the
Rehnquist Court’s precedents, Congress remains free to erect a
larger version of the Swedish welfare state. Liberals fear, however,
that Congress cannot actually pursue that project, since the
Justices have forced Congressmen to cast a clean, responsible vote
on the proposition. That apprehension is probably warranted, but it
makes for a very odd indictment of the Rehnquist Court and its
federalism.

The Supreme Court’s statutory federalism deserves, and demands, a
robust, substantive defense—not soothing assurances it doesn’t
amount to a hill of beans. In Leslie Nielsen’s immortal words, this
is our hill, and these are our beans. It should be possible to
defend federalism against federal micro-management; political
responsibility against special interest shenanigans; congressional
authority against judicial usurpation.

We will soon find out whether the stupidest of political parties is
capable of mounting a defense along these lines. Statutory
federalism cases are coming fast and furious, and all of them
implicate federal interests. Since the Justice Department’s views
carry particularly great weight in statutory cases, much will depend
on whether the Department takes sides for the Rehnquist Court’s
constitutionalism or else, deference of "the will of Congress" and
Brennanesque interest group politics.

More immediately still, impending fights over appointments to the
federal bench may put federalism’s friends to the test. After the
obligatory exercise in bipartisan congeniality ("Are you now, or
have you ever been, a member of the Federalist Society?"), the
senatorial inquisition is sure to focus on Mr. Sutton’s federalism
record. Since the Washington Post has already tagged him as an
accomplice of the AEI Federalism Project, we probably do Mr. Sutton
no further harm by expressing the conviction that his federalism
advocacy warrants his confirmation, not an apology. It would help if
Mr. Sutton’s nominators made a forthright case to the same effect.
i. Simon Lazarus, "Don't Be Fooled. They're Activists, Too," The
Washington Post June 3, 2001, p. B3. Senator Patrick Leahy (D-VT)
has scheduled a Senate Judiciary Committee hearing on "The Rehnquist
Court's Federalism Jurisprudence: Conservative Judicial Activism."
ii. 133 F. Supp 2nd 549, 587 (2001). The AEI Federalism Project's
website, http://www.federalismproject.org provides a link to this
important decision.

iii. Alexander v. Sandoval, 121 S.Ct 1511 (2001). The Justices
reserved the question of whether the clear statement rule precludes
any and all implied private rights under any statute. An explicit
holding to that effect, however, is only a matter of time, since it
is hard to imagine a right that is both clearly stated and implied.
iv. Will v. Michigan Department of State Police, 491 U.S. 58 (1989)
(states are not "persons"); Middlesex County Sewage Authority v.
National Seaclammers Association 453 U.S. 1 (1981) (detailed
remedial scheme precludes private enforcement under Section 1983);
Smith v. Robinson, 468 U.S. 992 (1984) (same). While Seaclammers
suggests that the "remedial scheme" had to be quite specific, more
recent case law indicates that most statutory, non-judicial
enforcement provision may thwart private enforcement. See, e.g.,
Suter v. Artist M, 503 U.S. 347, 361 (1992) (dictum); Westside
Mothers v. Haveman, 133 F. Supp 2nd 549, 587 (2001) (holding).
v. See, e.g., Pennhurst State Hospital v. Haldeman, 451 U.S. 1
(1981); Westside Mothers v. Haveman rests almost entirely on the
proposition that Medicaid, as a Spending Clause statute, is not the
supreme law of the land but merely a state-federal contract. For a
powerful scholarly defense of this view see David Engdahl, "The
Spending Clause," 44 Duke L. J. 1 (1994).

vi. J.I. Case Co. v. Borak, 377 U.S. 426 (1964) (implied private
rights); Maine v. Thiboutot, 448 U.S. 1 (1980) (Section 1983);
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).
vii. See, e.g., Tennessee Valley Authority v. Hill, 437 U.S. 153,
184 (1978) (Brennan, J., joining) (Endangered Species Act evidences
congressional intent to preserve Tennessee snail darter and all
other endangered species, "whatever the cost.")

viii. U.S. v. Lopez, 514 U.S. 549 (1995); U.S. v. Morrison, 529 U.S.
598 (2000). See J. Harvie Wilkinson, "Is there a Distinctive
Conservative Jurisprudence?" Bradley lecture delivered at AEI, March
5, 2001 (available at http://www.aei.org/bradley/bl010305.htm);
Pietro Nivola, "Does Federalism Have a Future?" The Public Interest,
No. 142, Winter 2001, 44; Kenneth W. Starr, "Judges and the GOP."
The Wall Street Journal, May 5, 2001 A18.