October 31, 2005
Will Alito Try To Revive Dead Again Federalism?
Posted by David Zaring

I take few doctrines less seriously than federalism. In this I am not alone, of course; conservatives have abandoned federalism in the California medical marijuana and Oregon right to die cases, and everybody else has had little patience for it since the New Deal. The idea that this country, with a national economy, a national language, and a news media that disseminates a single culture nationwide ought to be politically governed and economically regulated by a set of random fragments, er, states – indeed, fragments devised in intermittent fits of 19th century ad hockery … well, it is, neurotic, as Malcolm Feeley and Edward Rubin have said more eloquently than I can here (see 41 UCLA L. REV. 903 for their insightful but non-SSRN-available view).

I would counsel any senator against confirming a judge with a sincere commitment to federalism – and that’s if such a commitment is even possible, or at least possible to claim with a straight face. So – uh, oh – what’s going on in Judge Alito’s opinion in Chittister v. Department of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000): excising the applicability of the Family and Medical Leave Act to state employees because of a failure by Congress to make a particular finding? “Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.” And what’s this? By creating “a substantive entitlement to sick leave … the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm," therefore failing to get it over the high hurdle posed by [shudder] state immunity from suit under the Eleventh Amendment?

It’s troubling, is what it is. But at least it's a relief that this is what federalism amounts to today in the courts - a fight over whether state employees get to enjoy the same federal benefits that everyone else does.  There's another silver lining too: at least Alito doesn’t give any old public authority the protections he appears to be willing to afford state bureaucracies. See Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991).

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» Alito and family/medical leave, cont'd from PointOfLaw Forum ...
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Comments (12)

1. Posted by Vic Fleischer on October 31, 2005 @ 14:01 | Permalink

I suspect the potential knock against Alito (on the merits anyway) is that he's too results-oriented. But I haven't done the research, so I don't know. Is he a principled guy, willing to use federalism to respect the rights of marijuana or Kevorkian-users? Or is he just using the available tools at his convenience to satisfy his personal preferences? I hope to write more about this on the Alito / business law thread ...

2. Posted by David Zaring on October 31, 2005 @ 15:29 | Permalink

True. But my view is that federalism - a process, not a principle, and one based on a major commitment to real government inefficiencies - can't provide much of a rule of decision over deeply held commitments. It'll always be cast aside. It's annoying to see it brought out by the I'm sure otherwise very wise nominee

Not that this came across very clearly in the post. Maybe I should more vigorously embrace the deletion principle!

3. Posted by Robert Schwartz on October 31, 2005 @ 19:15 | Permalink

OK, i am neurotic, deal with it.

4. Posted by Scott Moss on October 31, 2005 @ 20:00 | Permalink

Alito also cited "federalism" as a theoretical premise for his narrow view of Congress's power to pass legislation pursuant to its Commerce Clause power. In dissent, he wrote that the federal ban on machine guns is unconstitutional -- not on Second Amendment grounds, but as beyond the Commerce power. I don't know of any environmental rulings by him, but a number of judges (mostly in the 5th Circuit) who've written similarly about the machine gun ban have used the same logic to strike down environmental laws -- ruling that the federal government can't regulate intra-state environmental harms. So the "federalism" mantra, however, inconsistently cited by both sides, is a real threat to a substantial body of progressive legislation....

5. Posted by Plainsman on October 31, 2005 @ 21:33 | Permalink

If we're going to pathologize opposing views ("a neurosis"), it's Prof. Zaring who seems to be venting some anxieties in this post. Why leap in with the harsh dismissal? If federalism is so laughable, then why does it have so much traction as a mode of argument?

Zaring's claim about our being one big unified culture is, I'm sorry, nonsense. Hence the expression "the culture wars." Federalism is the only sensible framework for governing a continent-sized nation of 300 million souls with sharply divergent political preferences. Steven Calabresi and Michael Greve have written persuasively and elegantly on this point, which is underpinned by common sense. A respect for Our Federalism is just about the only way that most of the people can get most of what they want most of the time. Fortunately, it is also a principle welded into the text of the Constitution that all judges take a solemn oath to uphold.

Conservatives have abandoned federalism in the California medical marijuana ... case

That is facially inaccurate. Loads of conservatives supported the pro-federalism side in the medical marijuana case. Angel Raich got three votes in SCOTUS, two more than most observers expected. Those votes did not come from liberal Justices. Are we to believe this was just some kind of stalking horse for the dissenting Justices' personal sympathies? Yep, Rehnquist, O'Connor, and Thomas didn't really care about maintaining some limit on the federal commerce power; they are just loyal potheads, or fans of alternative medicine.

Look, politicians in the elected branches of the national government tend to be indifferent to federalism principles when their ox is being gored. This should surprise no one. It is not an argument against federalism, it's a reason why we can't rely on Congress to uphold the federalism limits imposed by the Constitution, any more than we rely on cops to uphold the criminal procedure protections in the Bill of Rights. We need the courts.

6. Posted by Alan Meese on October 31, 2005 @ 22:13 | Permalink

The problem for Mr. Zaring is that the Constitution that judges are sworn to uphold, and from which they derive their authority, is a federalist one. See article I, Section 8. Moreover, we had a common language in 1789, too, and that did not preclude the founders and ratifiers from adopting a government of enumerated powers. (We may even have a higher proportion of folks with non-English as their first language today than in 1789.) We also had national (and international) markets in 1789, too. Does Mr. Z think that Virginia tobacco was grown and sold only in Virginia? That each state had its own rum industry? That each state had its own printing industry, so people in Maine never read books produced in Virginia? The mere fact of "national markets" does not ipso facto confer upon Congress a general police power. Indeed, in the Federalist Papers, Hamilton said there was no need for a first amendment because Congress had no power to regulate the press in the first place. This despite the fact that books obviously moved across state lines. A senator who votes against someone because he believes in federalism would violate his oath to uphold the constitution.

7. Posted by Alan Meese on October 31, 2005 @ 22:16 | Permalink

Mr. Moss states that federalism is a threat to progressive legislation if, for instance, federalism prevents national regulation of "intra-state environmental harms." But if the harms are truly intra-state, then why not rely on individual states to do the regulating? Why will Congress do a better job of passing the right regulation if a state internalizes the full cost of the harm?

8. Posted by David Zaring on October 31, 2005 @ 22:42 | Permalink

Scott - shoulda mentioned the dissent in the post.

Federalists - nicely put and all, but eh. It's the same court now that it was a decade ago, and the Seminole Tribe revolution hasn't exactly happened - that's why I cited the two recent cases. To say nothing of incorporation and the rise of the relatively unfettered administrative state, to pick two other judicial doctrines - and that's if you don't want to think about nonjudicial developments like Hollywood and General Motors, neither of which have 50 state cognates and both of which have a lot more effect on the life of this Virginian than Richmond does. None of that's going to change, but if Alito's going to act like it could, or it must, then yes, we should worry.

But the last word is yours.....

9. Posted by Suzanna Sherry on November 1, 2005 @ 9:36 | Permalink

I don't want to get involved in the debate about the virtues -- or lack thereof -- of federalism. Nor am I a particular fan of Judge Alito.

But attacking his opinion in Chittister is unfair. Before Hibbs, every court of appeals except the 9th Circuit (ultimately affirmed in Hibbs) similarly found the FMLA abrogation of immunity invalid, on the grounds outlined by Judge Alito.

Indeed, I believe (and have argued in print, see 2003 Sup. Ct. Rev. 231) that Hibbs was itself a distortion of earlier precedent. Whether cases like Seminole Tribe, Garrett, Kimel, and City of Boerne are right are wrong, they are more supportive of Judge Alito's position in Chittister than of the Supreme Court's ultimate ruling in Hibbs.

10. Posted by David Zaring on November 1, 2005 @ 11:13 | Permalink

Suzanna - I agree with you, which is why I'm not more upset about it. The opinion is concise and straightforward - one gets a sense that in the future there's not going to be a lot of "by Jove, we're going back to 1780!" cries of rage from the justice in special concurrences or dissents chock full of references to Coke and Hamilton.

Still, at the end of the opinion, we're left with a a struck-down statute, based on recent and shaky precedents, and what I view as an absurd outcome - regardless of how one feels about family and medical leave, why does the constitution require the exemption of state but not local officials? ... and then we're back to federalism again.

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