Nation's Top Court To Hear Several States' Right Cases
By Bair S Walker , Senior Writer
Before recessing in June, the U.S. Supreme Court issued three decisions strongly reaffirming the concept of state sovereignty and curtailing Congress' power to create federal law binding on the states. Legal observers expect that trend to continue during the high court's 1999-2000 term, which begins today.
"About 10 percent of the court's docket so far is devoted to federalism issues, and that's an extraordinarily high proportion of the court's time," says Mark Levy, a Supreme Court litigator with Howrey & Simon in Washington, D.C.
That's significant, since the 1990s have been "a period where the court is very solicitous of states' rights," according to Levy.
One of the cases before the Supreme Court is Kimel v State of Florida, which involves a discrimination suit filed against Florida under a federal law banning age discrimination in the workplace. Florida argues that under the 11th Amendment, a state can't be sued by one of its own citizens in a federal court, unless the state consents.
The court will also hear Condon v Reno, a South Carolina case filed by that state's attorney general, Charlie Condon, against U.S. Attorney General Janet Reno and the federal government. South Carolina, which recently withstood a firestorm of citizen criticism for selling driver's license information to a New England firm, is challenging the federal Driver's Privacy Protection Act (DPPA).
That law regulates the disclosure of personal information contained in state motor vehicle records.
A lower federal court ruled that the DPPA violates the 10th Amendment, which says that powers not delegated to the federal government by the Constitution, nor specifically prohibited to the states, may be exercised by the states.
The state of Washington is involved in yet another case on the high court docket, International Association of Independent Tanker Owners v Locke (Washington Gov. Gary Locke). It focuses on a law Washington enacted to protect itself from pollution from oil tankers following the Exxon Valdez spill in Alaska in 1989.
At issue is whether Washington's law is pre-empted by comparable federal legislation, under the supremacy clause of the Constitution.
Independent Tanker Owners v Locke is the kind of case that's closely monitored by Robin Conrad, an attorney with U.S. Chamber of Commerce in Washington, D.C.
"I have a concern about the ability of the business community to remain competitive when it is forced to comply with 51 different sets of regulations," says Conrad, who heads the National Chamber Litigation Center. "National uniformity is the key to remaining competitive in a global and domestic market."
Otherwise, says Conrad, "you have a balkanization of the states, and a race to the bottom."
The three states' rights cases the Supreme Court ruled on during its last term were each decided in favor of the states by identical 5-4 votes. The legal actions focused on 11th Amendment concerns. In one case, the court ruled that Maine probation officers could not sue the state under the Federal Fair Labor Standards Act without Maine's consent.
Depending on the issue being decided, Democrats and Republicans, conservatives and liberals, flip-flop on whether the balance of power should rest with states or with the federal government, says John Kincaid, a political science professor at Lafayette College in Easton, Pa.
"Consumer advocates and Democrats often prefer the states, given their feelings that Republicans will be less friendly to consumer protection," says Kincaid, with Lafayette's Meyner Center for the Study of State and Local Government.
On the other hand, "many conservative Republicans prefer to give a lot of discretion to the states to regulate abortion and social welfare, because they think the federal government is too liberal," Kincaid observes.
The dynamism of federalism and its endless power struggles between the states and the federal government, is nothing new.
"Federalism is the fundamental question of the relationship between the federal government and the states," Levy says. "It's a question that's occupied the government and the court for over 200 years now, and will continue to occupy it."
The head butting that goes hand-in-hand with federalism is actually a good thing, according to Kincaid.
"It creates tension that can lead to better policy outcomes in the long run," says Kincaid. "At the moment, I don't see it taking us down a bad road."