Urban Policy in a Changing Federal System Proceedings of a Symposium (1985) / Chapter Skim
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2. The Supreme Court and the Federal System: A Constitutional Framework for Urban Policy
2. The Supreme Court and the Federal System: A Constitutional Framework for Urban Policy
Pages 44-70
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From page 44... ...
The impact of the presidents and the Congress on the ultimate distribution of power in the federal system, however, has been deeply affected -- at times reinforced and at other times contradicted -- by decisions of the Supreme Court that have incrementally defined the constitutional basis of the federal system. In some cases it has been clear that the Court was dealing with basic organic relationships of the levels of government.
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From page 45... ...
. During the 1960s and early 1970s, the civil rights movement had in many ways as important an impact on the shape of the federal system as the New Deal, as the Court incorporated most of the Bill of Rights into the Fourteenth Amendment and greatly expanded the role of the federal courts in supervising the states directly in the performance of their constitutional duties.
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From page 46... ...
In effect, judges use substantive due process to substitute their judgment of the wisdom of legislation for that of the legislature. By use of the doctrine, the Supreme Courts of the late nineteenth and early twentieth centuries struck down as unconstitutional a variety of federal and state regulations of economic activity.
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From page 47... ...
Ultimately, Justice Harlan's position seems to have prevailed, for as the Court changed, so did receptivity to the revival of substantive due process. In the abortion cases, Justice Blackmun stated that This Right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty as we feel it is, or in the Ninth Amendment's reservation of rights .
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From page 48... ...
on balance, however, substantive due process still languishes in judicial purgatory. This may be because there are other doctrines available to the Court for restraining state regulation of economic affairs, including limitations on municipal immunity from antitrust actions (Freilich and Carlisle, 1982)
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From page 49... ...
BALANCING TESTS AND DEFERENCE TO THE STATES While being so self-conscious about the indiscriminate use of the Due Process Clause, the Court has relied on other parts of the Constitution as a basis for defining the limits of state power. In cases involving the Commerce Clause, the issue often turns on whether a state regulation of economic activity unreasonably burdens commerce.
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From page 50... ...
In the years following the New Deal, the Court took a fairly deferential attitude toward state laws affecting contractual rights, so long as the basic obligation was left intact. In recent years, however, it has begun to restrict state creativity in contract matters and to apply a higher level of scrutiny to state laws that alter the terms of contracts.
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From page 51... ...
EXPANSION OF THE REACH OF THE FOURTEENTH AMENDMENT Dual sovereignty survived the Civil War because the Supreme Court restricted the reach of the Fourteenth Amendment. In the Slaughter House Cases, 83 U.S.
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From page 52... ...
Another important result of the active assertion of the Fourteenth Amendment on the federal system is that many matters of state organic law have come under the supervision of the federal courts. State elections, the apportionment of state legislatures and local governing bodies, state education systems, and other institutions have all been measured against the standards of the Equal Protection Clause and found wanting.
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From page 53... ...
in cases in which state and local officials refuse to meet constitutional standards for the protection of substantive rights that have been incorporated into the Fourteenth Amendment. The use of the administrative injunction has raised serious questions about the appropriateness of judicial administration of state agencies (Glazer, 1978)
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From page 54... ...
This is a sharp departure from the deference shown the states under the dual sovereignty doctrine. ENFORCEMENT OF FEDERAL CIVIL RIGHTS STATUTES AGAINST THE STATES Civil rights is an important aspect of the state action doctrine that has changed significantly in recent
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From page 55... ...
became an effective weapon against statesupported or state-tolerated discrimination. New civil rights legislation enacted in the 1950s and 1960s not only limited the powers of the states, but used the authority granted Congress by the Civil War amendments and the Commerce Clause to impose affirmative duties on the states to carry out national policies designed to end discrimination and even to compensate for past racial discrimination.
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From page 56... ...
Harris, 410 U.S. 37 (1971j, the Supreme Court set aside a federal court injunction against state prosecution under the California Criminal Syndicalism Act as a violation of the national policy forbidding federal courts to enjoin pending state court proceedings except under special circumstances.
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From page 57... ...
The Supreme Court held that the Eleventh Amendment prohibited enjoining state officials to comply with a federal court's interpretation of state law when such an interpretation is the result of the court's pendant jurisdiction, i.e., when the state legal question is before the federal court as an issue collateral to the federal issues (Pennhurst State school and Hospital v. Halderman, 104 S.Ct.
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From page 58... ...
Moreover, a footnote warned that the limitations of the Tenth Amendment were good for the Commerce clause only. Statutes passed under the taxing and spending power and Section 5 of the Fourteenth Amendment might well pass muster even if they do affect the integral operations of state government (Tribe, 1977)
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From page 59... ...
If no longer a constitutional corpse, the Tenth Amendment remained comatose. Then, in Garcia, confronted again with the applicability of the Fair Labor Standards Act to a city government function, the Court, speaking through the converted Blackmun, declared that the attempt to draw boundaries based on Traditional functions of state and local government was knot only unworkable but inconsistent with established principles of federalism .
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From page 60... ...
THE SUPREME COURT AND CONGRESSIONAL FEDER=I SM As we have already seen, the Court has been quite deferential toward the exercise of congressional power, even when the result is the limitation of state power. Given the very limited restrictions placed on the Commerce Clause by the Court and the virtually unlimited discretion allowed Congress when it acts under its taxing and spending powers, the Court can be expected to ratify most congressionally initiated changes in the way the federal system works.
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From page 61... ...
448 (1981) , the Supreme Court approved the withholding of funds as a sanction for state failure to comply with a federal program requirement that 10 percent of a public works grant be set aside for minority contractors.
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From page 62... ...
The federal courts have so far been unwilling to require states to carry out federally imposed implementation plans, but they have required them to carry out mandated plans that they developed themselves. The important point here is that Congress has the power to lift any of these restrictions; they are not constitutionally based.
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From page 63... ...
It is also possible that the constraint of federal funds will move Congress to use more overt regulation as a means of advancing national interests rather than rely on fiscal persuasion of state and local governments. To a considerable extent, cooperative federalism has mutated into ~cooptive federalism,.
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From page 64... ...
It has considerable rhetorical vitality and no legal importance. Dual Sovereignty Often buried but never quite dead, dual sovereignty remains a distinct constitutional doctrine.
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From page 65... ...
Cooperative federalism requires virtually unlimited power for Congress under the Commerce Clause and taxing and spending power of the Constitution. Thus, it requires a superfluous Tenth Amendment and the interment of substantive due process as a limitation on economic regulation.
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From page 66... ...
Imposition of detailed standards is eschewed in favor of giving the states discretion in meeting generalized objectives, as in block-grant programs. Abstention doctrines are favored as a means of giving state courts a first crack at handling constitutional conflicts with state law, so long as final review by the Supreme Court is not surrendered.
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From page 67... ...
Functional federalism would divest the federal government of activities that the states can perform better because of their proximity to the people served or because of their inherent position in the constitutional scheme. IMPLI CATI ONS FOR THE NEW FEDERALI SM AND NATIONAL URB~ POLICY With the important exception of civil rights, the future character of the federal system is far more a matter of policy choice than of constitutional law.
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From page 68... ...
With a sharply divided Court, however, the history of federalism doctrine would counsel against an assumption that there will be no more judicial flirtation with some doctrine limiting national power over state functions. In some respects, the most interesting and potentially far-reaching transformation in the federal system is the extent to which the federal courts have exercised their constitutional equity power to supervise state and local agencies through the use of administrative injunctions.
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From page 69... ...
1981 The Supreme Court, 1980 term. Review 95:93-345.
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From page 70... ...
Tribe, L 1977 Unraveling National League of Cities: the new federalism and affirmative rights to essential government services.
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