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Rehnquist-Led Court Shifts Power to States

But emerging 'judicial federalism' divides justices

A COMBINATION of assertive state officials and the conservative wing of the Supreme Court is leading the nation into significant new constitutional waters - landmark rulings that limit federal power and give increased say-so to state capitals. Moreover, as of this week, potential new landmark rulings on behalf of states are on the horizon.

While bitterly opposed by the tribunal's moderates, this judicial "federalism" is quietly emerging as the hallmark of the Rehnquist-led court of the 1990s. Legal scholars now draw a breath to describe the range of challenges offered by conservatives to rethink the historic line between states rights and federal supremacy enshrined in the Constitution's Article 6.

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"There is a concerted effort to reexamine the relation between state and federal power across the spectrum of the Constitution," says law professor Stephen Wermiel of Georgia State University.

The court announced April 15 it would hear two more cases that could allow states even greater latitude. It agreed next year to decide whether state wage laws in California are superseded by federal standards requiring a higher minimum wage.

The court also agreed on April 15 to resolve an Idaho dispute over who controls the waterways within an Indian reservation. As with last month's Seminole gambling decision that limited the ability of Congress to take states to federal court, the Idaho case could signal to state capitals that the court is prepared to give states more latitude and power.

Moreover, a recent dispute between two US Circuit Courts of Appeals over the Brady handgun bill will likely force a major court showdown over Washington's power to require local and state police to enforce a waiting period for buyers of handguns.

Last year, when the court for the first time in 60 years limited the powers of Congress in a decision (US v. Lopez) dealing with guns near schools, many experts were dubious about the extent of the ruling. Yet the recent Seminole gambling decision, which limits Congress's ability to take a state to federal court, made believers out of many skeptics.

"The line of these cases gets longer every day," says Marci Hamilton of New York's Benjamin Cardozo Law School, a former law clerk for Justice Sandra Day O'Connor. "The five conservatives are able to articulate their federalism, and momentum is building in support of the doctrine."

Advocates for judicial federalism usually cite the virtues of local control - of a state's unique ability to resolve its own problems, shape its own decisions, and not be a kind of powerless subcontractor for Washington's edicts. The great tool in the federalism kit is the 10th Amendment. Four years ago, Justices William Rehnquist and O'Connor, the court's two leading states rights advocates, laid the foundation for federalism by citing this amendment in New York v. US, which allowed states to make their own decisions regarding the disposal of nuclear waste.

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States rights is often viewed as a conservative trend, since it was the doctrine of pro-slave Southern states during the Confederacy. Federal supremacy, via the 14th Amendment, was used to enforce civil rights, as in the historic 1954 Brown v. Board of Education to desegregate Southern schools.

But federalism can also cut a more traditionally liberal swath. The State of Hawaii, for instance, used federalist arguments in its recent decision to legally recognize "same sex" marriages.

YET it would be difficult to overstate the profound disagreement felt by moderates, such as Justices David Souter and John Paul Stevens, with the entire line of federalist reasoning. Essentially, these justices feel the new trend - which has radical implications for federal laws governing the environment, business, and rights - leaves states unaccountable for abuses of power, intentional or not.

For example, the Seminole decision reverses a famous 1989 Pennsylvania case (Penn. v. Union Gas) that required the Keystone State to pay in part for cleanup of a stream it was partly responsible for polluting. Under Justice Rehnquist's majority opinion in the Seminole decision, the state could claim immunity from paying under the 11th Amendment.

Court moderates see this as a regressive step, a return to the legal climate of the 1890s when many federal laws created during the Reconstruction period after the Civil War were rolled back, allowing Southern states to claim sovereignty rights that excused segregation.

As Justice Souter wrote in a 92-page dissent in the Seminole case, "Given the framers' general concern with curbing abuses by state governments, it would be amazing if the scheme of delegated powers embodied in the Constitution had left the national government powerless to render the states judicially accountable for violations of Federal rights."

It is too early, however, to know how federalism will play out in the courts. Part of the reason federalism is on the high court's docket is the sheer increase in petitions brought by state officials desiring to experiment with new policies or arguing that federal laws are too costly.

"For decades the court simply ignored states rights cases," says law professor Bernard James of Pepperdine University in California. "Now it seems open to a new wrinkle."

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