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 United States v. Lopez 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

The Washington Post

Sunday, June 3, 2001; Page B03

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.

© 2001 The Washington Post Company



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

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.

Michael B. Brennan is a judge on the state trial court in Milwaukee, Wisconsin.



Federalism, Yes. Activism, No.
by Michael S. Greve

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.


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.1

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 thisallegedly 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.


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.2 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.3

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.4

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.5

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.6

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."7 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).8 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.

Michael S. Greve is the John G. Searle Scholar and the director of the Federalism Project at AEI.


  1. 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."
  2. 133 F. Supp 2nd 549, 587 (2001). The AEI Federalism Project's website, http://www.federalismproject.org/ provides a link to this important decision.
  3. 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.
  4. 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).
  5. 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).
  6. 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).
  7. 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.")
  8. 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.