DUE 4/10

Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration Author(s): Robert K. Christensen and Charles R. Wise Source: Public Administration Review, Sep. - Oct., 2009, Vol. 69, No. 5 (Sep. - Oct., 2009), pp. 920-931 Published by: Wiley on behalf of the American Society for Public Administration Stable URL: https://www.jstor.org/stable/40468971 JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and .facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at https://about.jstor.org/terms

Wiley and American Society for Public Administration are collaborating with JSTOR to digitize, preserve and extend access to Public Administration Review

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

Big Questions Facing Public Administration

Theory

Robert K. Christensen

University of North Carolina-Charlotte Charles R. Wise Ohio State University

Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration

Robert K. Christensen is an assistant

professor of political science and serves

the master of public administration and

PhD in public policy programs at University

of North Carolina-Charlotte. Interested

in institutional precursors of public and

nonprofit performance, his research focuses

on the intersection of public law, policy,

and public and nonprofit administration.

He is a past recipient of the John A. Rohr

Fellowship.

E-mail: [email protected]

Charles R. Wise is director of the

John Glenn School of Public Affairs and a

professor of public affairs at the Ohio State

University. He has served as managing

editor of PublicAdministration Review

and has received the William E. Mosher

and Frederick C. Mosher Award for best

article in the PublicAdministration Review

three times.

E-mail: [email protected]

Federalism jurisprudence shapes thepowers that

public administrators have to achievepolicypriorities. Federalism, however, is neither static nor simplistic as a concept, and a proper understanding ofthe environment

in whichpublic administrators work rests on a careful

analysis ofU.S. Supreme Court decisions. The authors

review chims that a 2005 decision, Gonzales v. Raich, terminated afederalism revolution that had been ushered

in a decade earlier. Does Raich infact mark the end of the Supreme Courtsfederalism doctrine?Analysis ofthis

question chrifies whether thepast and current Court

has articuhted any direction touching on administrators'

powers at both the national and state leveh. The

authors argue that before thefederalism revolution is

dechred dead or alive, public administration can better

understand the realities ofthe Supreme Courts doctrinal

boundaries by examining a more detailed analysis of jurisprudencefor what is says about thefoundations offederalism such as the commerce chuse, Fourteenth

Amendment, Tenth Amendment, Eleventh Amendment,

spending chuse, and statutory interpretation issues.

is explicitly covered in many current

Federalism textbooks on public administration (e.g., Milakovich and Gordon 2007; Rosenbloom

and Kravchuck 2005; Starling 2007) as a funda- mental part of the operating environment ofpublic administration. Thomas Anton (1989, 3) defines federalism as the system of rules that divides public responsibilities among various units of govern- ment. The U.S. Supreme Court has come to play an

important role in articulating that system of rules. The

Supreme Court s federalism decisions are especially impor- tant in understanding what

powers public managers have to achieve policy priorities in

the current context of devolved

government (Wise 1998).

The Supreme Court s role in

defining the framework of our federal system has not always

been so active. Many summarize the Court s federal-

ism doctrines as following a trend that has consist-

ently favored national authority since the 1800s.1

While there were several exceptions to this trend prior to 1937,2 in that year, the Court, in National Labor Relations Board v.Jones and Laughlin (301 U.S. 1), returned with fervor to its practice of solidifying the

reach of congressional power. The Courts stance on

federalism from 1937 to 1995- with a notable com-

merce clause exception ofNational League ofCities v. Usery, which was later overturned in Garcia v.San Antonio Metropolitan Transportation Authority*

- has

been called a period of "Constitution in exile." The decision in Garcia particularly disappointed federalism

proponents because, in overturning Usery, the Garcia

majority stated that the principal limit on Congress's commerce power to regulate state functions is to be

found in state participation in the legislative process of Congress, and not the federal courts (469 U.S. 556 [1984]). That pronouncement seemed to crystallize the "Constitution in exile." This refers to the Supreme Court s unwillingness "to enforce constitutional limits

on national power vis-à-vis the states" (Baker and

Young 2001, 75). Many scholars concluded that the

Court had merely abandoned its role in interpreting the Constitution with regard to what it means for the

respective powers of the federal government and state

governments (Cooper 1988; Van Alstyne 1985).

However, the Court s posture changed in the 1990s. In a series of cases, the Supreme Court signaled a

change in the legal basis of intergovernmental rela-

tions that portended a shift in

the environment of public administration (Dinan 1998; Rosenbloom and Ross 1998; Wise 1998). In 1995, the Su-

preme Court handed down one

particularly notable decision, United States v.Lopez (514 U.S. 549 [1995]), that seemingly broke with the decades-long trend of consistently affirming

The Supreme Court s federalism decisions are especially

important in understanding what powers public managers have to achieve policy priorities

in the current context of devolved government.

920 Public Administration Review · September |October 2009

Big Questions Facing Public Administration

Theory

Robert K. Christensen

University of North Carolina-Charlotte Charles R. Wise Ohio State University

Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration

Robert K. Christensen is an assistant

professor of political science and serves

the master of public administration and

PhD in public policy programs at University

of North Carolina-Charlotte. Interested

in institutional precursors of public and

nonprofit performance, his research focuses

on the intersection of public law, policy,

and public and nonprofit administration.

He is a past recipient of the John A. Rohr

Fellowship.

E-mail: [email protected]

Charles R. Wise is director of the

John Glenn School of Public Affairs and a

professor of public affairs at the Ohio State

University. He has served as managing

editor of PublicAdministration Review

and has received the William E. Mosher

and Frederick C. Mosher Award for best

article in the PublicAdministration Review

three times.

E-mail: [email protected]

Federalism jurisprudence shapes thepowers that

public administrators have to achievepolicypriorities. Federalism, however, is neither static nor simplistic as a concept, and a proper understanding ofthe environment

in whichpublic administrators work rests on a careful

analysis ofU.S. Supreme Court decisions. The authors

review chims that a 2005 decision, Gonzales v. Raich, terminated afederalism revolution that had been ushered

in a decade earlier. Does Raich infact mark the end of the Supreme Courtsfederalism doctrine?Analysis ofthis

question chrifies whether thepast and current Court

has articuhted any direction touching on administrators'

powers at both the national and state leveh. The

authors argue that before thefederalism revolution is

dechred dead or alive, public administration can better

understand the realities ofthe Supreme Courts doctrinal

boundaries by examining a more detailed analysis of jurisprudencefor what is says about thefoundations offederalism such as the commerce chuse, Fourteenth

Amendment, Tenth Amendment, Eleventh Amendment,

spending chuse, and statutory interpretation issues.

is explicitly covered in many current

Federalism textbooks on public administration (e.g., Milakovich and Gordon 2007; Rosenbloom

and Kravchuck 2005; Starling 2007) as a funda- mental part of the operating environment ofpublic administration. Thomas Anton (1989, 3) defines federalism as the system of rules that divides public responsibilities among various units of govern- ment. The U.S. Supreme Court has come to play an

important role in articulating that system of rules. The

Supreme Court s federalism decisions are especially impor- tant in understanding what

powers public managers have to achieve policy priorities in

the current context of devolved

government (Wise 1998).

The Supreme Court s role in

defining the framework of our federal system has not always

been so active. Many summarize the Court s federal-

ism doctrines as following a trend that has consist-

ently favored national authority since the 1800s.1

While there were several exceptions to this trend prior to 1937,2 in that year, the Court, in National Labor Relations Board v.Jones and Laughlin (301 U.S. 1), returned with fervor to its practice of solidifying the

reach of congressional power. The Courts stance on

federalism from 1937 to 1995- with a notable com-

merce clause exception ofNational League ofCities v. Usery, which was later overturned in Garcia v.San Antonio Metropolitan Transportation Authority*

- has

been called a period of "Constitution in exile." The decision in Garcia particularly disappointed federalism

proponents because, in overturning Usery, the Garcia

majority stated that the principal limit on Congress's commerce power to regulate state functions is to be

found in state participation in the legislative process of Congress, and not the federal courts (469 U.S. 556 [1984]). That pronouncement seemed to crystallize the "Constitution in exile." This refers to the Supreme Court s unwillingness "to enforce constitutional limits

on national power vis-à-vis the states" (Baker and

Young 2001, 75). Many scholars concluded that the

Court had merely abandoned its role in interpreting the Constitution with regard to what it means for the

respective powers of the federal government and state

governments (Cooper 1988; Van Alstyne 1985).

However, the Court s posture changed in the 1990s. In a series of cases, the Supreme Court signaled a

change in the legal basis of intergovernmental rela-

tions that portended a shift in

the environment of public administration (Dinan 1998; Rosenbloom and Ross 1998; Wise 1998). In 1995, the Su-

preme Court handed down one

particularly notable decision, United States v.Lopez (514 U.S. 549 [1995]), that seemingly broke with the decades-long trend of consistently affirming

The Supreme Court s federalism decisions are especially

important in understanding what powers public managers have to achieve policy priorities

in the current context of devolved government.

920 Public Administration Review · September |October 2009

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

the expansion of congressional power and instead interpreted the

Constitution's commerce clause by enunciating some limits on Con-

gress spower to use that clause as a basis forlegislation. In Lopez, the

Court struck down the Gun-Free School Zones Act, which made ita federal crime foran individual to possess a firearm at a place known to be a school zone, on the grounds that the act exceeded

Congress's powers under the Constitution's commerce clause (115 S.Ct. 1624 [1995]). As a result of this and subsequent commerce clause cases (see Wise 2001), some journalists and scholars raised the possibility that the Court had ushered in a federalism revolution

(Chemerinsky 2006; Turley 2005; Wall StreetJournal 1999). There seemed to be some agreement that the Court, if not revolutionist, at least articulated jurisprudence more Tocquevillian in itsdeference to states' powers (McGinnis 2002; Wise and Christensen 2005). Nonetheless, a fuller understanding of the Court's approach to

federalism questions necessitates an analysis of cases beyond those

based on the commerce clause. While the Court began to enunciate some limits on Congress's power to legislate based on the commerce clause and, to a lesser extent, on the Fourteenth Amendment, at the

same time, itexpanded Congress's legislative reach versus that of the

states based on the spending clause (Magill 2004; Ponnuru 2005; Wise 2001). Nonetheless, proponents of greater Court protection forstate prerogatives hoped that the Court's enunciation of some limits on federal power would lead to even greater deference to state

prerogatives in subsequent cases (Greve 1999).

However, in 2005, many feared that they heard a death knell forthe higher expectations harbored by such proponents in a subsequent case involving the commerce clause. The Court affirmed in Gonzales

ν.Raich (545 U.S. 1 [2005]) that Congress's regulatory power extends to activities- even purely local activities such as California's

legislation to authorize medicinal marijuana- that are "part of an

economic class of activities that have a substantial effect on inter-

state commerce" (545 U.S. 1,17). While much of the reasoning in

Raich is reminiscent ofWickardv. Filburn (317 U.S. Ill [1942]), the epitome of the "Constitution in exile" period, whether Raich is a

signal that the Court may once again be closing the federalism ques- tion is an issue with deep meaning forpublic managers.

Research Questions Our research inquiry iscentered on this last issue. What does the ebb

and flow of the Courts federalism jurisprudence imply forpublic managers? Did Raich and other recent cases mark the end of the

Supreme Court's federalism doctrine? Is the Court signaling a new

period of "Constitution in exile"? Analysis of these questions clari-

fieswhether the past and current Court has

articulated any direction touching on admin-

istrators' powers to achieve policy priorities. The practical relevance of our inquiry for public administration restson how changes in

federalism jurisprudence have altered admin-

istrative powers forthe public administrator

at the national and state levels. Our analysis isbroadly organized along these lines and includes insights into what new federalism

directions might mean forpublic managers.

The analysis places the Lopez and Raich deci-

sions in a larger context forpublic administra-

tors. We argue that before the federalism revolution is declared dead or alive, public administration can better understand the realities of the Supreme Court's doctrinal boundaries by examining a more detailed analysis of recent, individual decisions forwhat they have to

say about the foundations of federalism, such as the commerce clause, Fourteenth Amendment, Tenth Amendment, Eleventh Amendment,

spending clause, and statutory interpretation issues. After we engage these issues, we profferour own estimation ofwhere the Court has struck the federalism balance. We conclude by highlighting the im-

portance of the debate forpublic managers.

The Federalism Revolution: Conflicting Perspectives Policy makers and commentators have taken up conflicting posi- tions on the significance of the Court's decisions involving federal-

ism. Citing the 1995 Lopez decision, Chemerinsky observed that for "the firsttime in sixty years, the Supreme Court declared a federal

law unconstitutional as exceeding the scope of Congress's commerce clause power . . . [o]ver the past decade the Supreme Court has limited the Scope of Congress's powers and has greatly expanded the protection of state sovereign immunity" (2006, 1763). McGin- nis observed that William Rehnquist's federalism jurisprudence "restores a degree of the Constitution's original meaning, because the Framers shared the Rehnquist Court's contemporary concern with restraining special interests [and] seems designed to protect the decentralized order and mediating institutions that Alexis De Tocqueville . . .viewed as our society's distinctive principle" (2002, 490-91). Yoo argued that while promoting federalism as the in-

tended "cornerstone of the Founder's liberal republic" (1998, 203), the Court emphasized the power that decentralized institutions have

to counterbalance an overbearing, centralized government. Like Yoo, Calabresi (2001) welcomed the federalism revolution forthese same

reasons, also arguing that the judiciary is an important partner with

Congress in policing the reach ofnational legislative power.

Others have viewed the Court's new direction as potentially dam-

aging. Senator Charles Schumer recently described Rehnquist's federalism as a movement that "has undermined the lawmaking

authority ofCongress . . . reflecting a trend of diminishing judicial deference to Congress's ability to find facts and enact appropriate laws." Senator Arlen Specter roundly criticized the Court for"usurp- ing Congressional authority" (August 8, 2005, letter from Specter to

John Roberts, cited in Lazarus 2006). Focusing on the Court's opin- ions asserting Eleventh Amendment protection of state sovereignty,

Judge John Noonan objected to the Court inappropriately granting states power that necessarily lies with Congress- an effectofwhich

is also a transfer of congressional power to the

judiciary to determine these types of issues

(Noonan 2002). Amid the arguments over the

appropriateness of the federalism decisions, others have observed that the effects ofLopez on federalism policies have actually been fairly modest (Dinan 2004; Thomas and Tatelman

2005).

The 2005 Raich decision was greeted by some as the end of the federalism revolution. In

Raich, the Court announced that the federal

Controlled Substances Act did not exceed Con-

gress's power to prohibit medicinal marijuana,

The 2005 Raich decision was

greeted by some as the end of the federalism revolution. In

Raich, the Court announced that the federal Controlled

Substances Act did not exceed

Congress's power to prohibit medicinal marijuana, which was otherwise legal under California

law.

The Federalism Revolution and Its Meaning for Public Administration 921

the expansion of congressional power and instead interpreted the

Constitution's commerce clause by enunciating some limits on Con-

gress spower to use that clause as a basis forlegislation. In Lopez, the

Court struck down the Gun-Free School Zones Act, which made ita federal crime foran individual to possess a firearm at a place known to be a school zone, on the grounds that the act exceeded

Congress's powers under the Constitution's commerce clause (115 S.Ct. 1624 [1995]). As a result of this and subsequent commerce clause cases (see Wise 2001), some journalists and scholars raised the possibility that the Court had ushered in a federalism revolution

(Chemerinsky 2006; Turley 2005; Wall StreetJournal 1999). There seemed to be some agreement that the Court, if not revolutionist, at least articulated jurisprudence more Tocquevillian in itsdeference to states' powers (McGinnis 2002; Wise and Christensen 2005). Nonetheless, a fuller understanding of the Court's approach to

federalism questions necessitates an analysis of cases beyond those

based on the commerce clause. While the Court began to enunciate some limits on Congress's power to legislate based on the commerce clause and, to a lesser extent, on the Fourteenth Amendment, at the

same time, itexpanded Congress's legislative reach versus that of the

states based on the spending clause (Magill 2004; Ponnuru 2005; Wise 2001). Nonetheless, proponents of greater Court protection forstate prerogatives hoped that the Court's enunciation of some limits on federal power would lead to even greater deference to state

prerogatives in subsequent cases (Greve 1999).

However, in 2005, many feared that they heard a death knell forthe higher expectations harbored by such proponents in a subsequent case involving the commerce clause. The Court affirmed in Gonzales

ν.Raich (545 U.S. 1 [2005]) that Congress's regulatory power extends to activities- even purely local activities such as California's

legislation to authorize medicinal marijuana- that are "part of an

economic class of activities that have a substantial effect on inter-

state commerce" (545 U.S. 1,17). While much of the reasoning in

Raich is reminiscent ofWickardv. Filburn (317 U.S. Ill [1942]), the epitome of the "Constitution in exile" period, whether Raich is a

signal that the Court may once again be closing the federalism ques- tion is an issue with deep meaning forpublic managers.

Research Questions Our research inquiry iscentered on this last issue. What does the ebb

and flow of the Courts federalism jurisprudence imply forpublic managers? Did Raich and other recent cases mark the end of the

Supreme Court's federalism doctrine? Is the Court signaling a new

period of "Constitution in exile"? Analysis of these questions clari-

fieswhether the past and current Court has

articulated any direction touching on admin-

istrators' powers to achieve policy priorities. The practical relevance of our inquiry for public administration restson how changes in

federalism jurisprudence have altered admin-

istrative powers forthe public administrator

at the national and state levels. Our analysis isbroadly organized along these lines and includes insights into what new federalism

directions might mean forpublic managers.

The analysis places the Lopez and Raich deci-

sions in a larger context forpublic administra-

tors. We argue that before the federalism revolution is declared dead or alive, public administration can better understand the realities of the Supreme Court's doctrinal boundaries by examining a more detailed analysis of recent, individual decisions forwhat they have to

say about the foundations of federalism, such as the commerce clause, Fourteenth Amendment, Tenth Amendment, Eleventh Amendment,

spending clause, and statutory interpretation issues. After we engage these issues, we profferour own estimation ofwhere the Court has struck the federalism balance. We conclude by highlighting the im-

portance of the debate forpublic managers.

The Federalism Revolution: Conflicting Perspectives Policy makers and commentators have taken up conflicting posi- tions on the significance of the Court's decisions involving federal-

ism. Citing the 1995 Lopez decision, Chemerinsky observed that for "the firsttime in sixty years, the Supreme Court declared a federal

law unconstitutional as exceeding the scope of Congress's commerce clause power . . . [o]ver the past decade the Supreme Court has limited the Scope of Congress's powers and has greatly expanded the protection of state sovereign immunity" (2006, 1763). McGin- nis observed that William Rehnquist's federalism jurisprudence "restores a degree of the Constitution's original meaning, because the Framers shared the Rehnquist Court's contemporary concern with restraining special interests [and] seems designed to protect the decentralized order and mediating institutions that Alexis De Tocqueville . . .viewed as our society's distinctive principle" (2002, 490-91). Yoo argued that while promoting federalism as the in-

tended "cornerstone of the Founder's liberal republic" (1998, 203), the Court emphasized the power that decentralized institutions have

to counterbalance an overbearing, centralized government. Like Yoo, Calabresi (2001) welcomed the federalism revolution forthese same

reasons, also arguing that the judiciary is an important partner with

Congress in policing the reach ofnational legislative power.

Others have viewed the Court's new direction as potentially dam-

aging. Senator Charles Schumer recently described Rehnquist's federalism as a movement that "has undermined the lawmaking

authority ofCongress . . . reflecting a trend of diminishing judicial deference to Congress's ability to find facts and enact appropriate laws." Senator Arlen Specter roundly criticized the Court for"usurp- ing Congressional authority" (August 8, 2005, letter from Specter to

John Roberts, cited in Lazarus 2006). Focusing on the Court's opin- ions asserting Eleventh Amendment protection of state sovereignty,

Judge John Noonan objected to the Court inappropriately granting states power that necessarily lies with Congress- an effectofwhich

is also a transfer of congressional power to the

judiciary to determine these types of issues

(Noonan 2002). Amid the arguments over the

appropriateness of the federalism decisions, others have observed that the effects ofLopez on federalism policies have actually been fairly modest (Dinan 2004; Thomas and Tatelman

2005).

The 2005 Raich decision was greeted by some as the end of the federalism revolution. In

Raich, the Court announced that the federal

Controlled Substances Act did not exceed Con-

gress's power to prohibit medicinal marijuana,

The 2005 Raich decision was

greeted by some as the end of the federalism revolution. In

Raich, the Court announced that the federal Controlled

Substances Act did not exceed

Congress's power to prohibit medicinal marijuana, which was otherwise legal under California

law.

The Federalism Revolution and Its Meaning for Public Administration 921

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

which was otherwise legal under California law. Antagonists of the

federalism revolution viewed Raich as the resounding end to an

ill-begotten effort. Ponnuru observed, post-Raich, that "[o]ne has to ask, at this point, what conservatives have gained by attempting to get the courts to impose limits on congressional authority. The Court cannot impose federalism over the objections of the other

branches of the government. That project was never likely to succeed and is now over" (2005, 34-35). Lazarus suggested that Raich stands

contrary to "Rehnquist Court's half-aborted initiative and squarely behind the view that American federalism exists primarily to expand democratic options for the people- not to empower judges to

arbitrarily trump the choices of their elected representatives" (2006, 9). Proponents of the new federalism direction criticized Raich for

failing to provide what Lopez had offered: a contextual analysis of the circumstances under which congressional reach or regulation was justified (Coleman 2006, 862).

Concerning the line of the Courts federalism cases, we propose that "continued conversation" is a more appropriate descriptor than

"revolution" or "post-revolution." The history of federalism jurispru- dence does not support the polar prescriptions for federalism that

Raich's advocates and antagonists have suggested. We argue that Ra- ich and several other post-2000 cases represent additional points in a federalism conversation that continues to develop. Barnett supports this proposition relative to Raich's, holding that "federalism lives as

a 'first principle' of constitutional law because no Court has had the

temerity to kill it outright And if the New Deal Court could not take that step, neither will a future Court" (2005, 750).

To substantiate our proposition, we offer analyses at the national and state levels that take up a multiprovisional approach (Wise 2001). For public administrators, "a fuller picture [of federalism] comes into focus when we examine the various bases for the exercise of federal power and what the Court has said about them" (Wise 2001, 343). In considering the latest developments in the federalism conversation at the national and state levels, we contemplate these bases to include the commerce clause; Fifth Amendment; election clause; spending clause; Tenth, Eleventh, and Fourteenth amend- ments; as well as selected statutory interpretations by the Court.

Analysis: National Boundaries of the Revolution

Commerce Clause As mentioned earlier, the Court in United States v.Lopez invalidated the Gun-Free School Zones Act. The Court's majority opinion set

out the criteria for assessing valid statutes within the commerce clause, stating that they should be sustained if it could be shown that the activity to be regulated "substantially affects" interstate commerce (115 S.Ct. 1640 [1995]). In a subsequent case, United States v.Morrison, the Court struck down a part of the Violence

Against Women Act on similar grounds, finding that gender-moti- vated crimes ofviolence do not, in any sense of the phrase, consti- tute economic activity (120 S.Ct. 1751 [2000]). The Court stated that the existence of findings is not sufficient by itself to sustain the

constitutionality of commerce clause legislation (120 S.Ct. 1751, 1752).

In Gonzales ν.Raich, the Court heard a constitutional challenge to the Controlled Substances Act (21 U.S.C. sec. 801 et seq.) from

922 Public Administration Review · September! October 2009

two California residents who sought to avail themselves ofmari-

juana pursuant to a California statute that created an exception for

marijuana use prescribed for a medical condition. The residents

asserted (citing Morrison) that the Controlled Substances Act could not constitutionally be applied to their activities because Congress had not made a specific finding that the intrastate cultivation and

possession ofmarijuana for medical purposes based on the rec-

ommendation of a physician would substantially affect the larger interstate marijuana market. The Court's majority, however, found

that Congress had made findings regarding the effects of intr-

astate drug activity on interstate commerce, and observed that the

court of appeals had found that those findings weighed in favor of

upholding the constitutionality of the act (352 F.3d. 1222, 1232

[2003]). Further, the Court's majority, citing Lopez, observed that

the Court never required Congress to make particularized findings in order to legislate, and asserted that "while congressional findings are certainly helpful in reviewing the substance of a congressional

statutory scheme, particularly when the connection to commerce is

not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized

findings does not call into question Congress' authority to legislate"

{Gonzales ν.Raich, 545 U.S. 1, 21 [2005]). The majority observed

that they "need not determine whether the residents' activities,

taken in the aggregate, substantially affect interstate commerce in

fact, only whether a 'rational basis' exists for so concluding" {Raich,

22, referencing Lopez). The majority went on to find that Congress had a rational basis for concluding that leaving home-consumed

marijuana outside federal control would similarly affect price and market conditions {Raich, 20). The residents had relied on the

Court s opinions in Lopez and Morrison, but the Court majority found that they had misapplied them. The Court concluded that,

in this case, the residents were asking the Court to excise individual

applications of a concededly valid statutory scheme, whereas in both

Lopez and Morrison, the parties had asserted that a particular statute

or provision fell outside commerce power in its entirety. Further, the

Court observed that in Lopez, the act did not regulate any economic

activity, whereas in this case, Congress's classification and regulation ofmarijuana was merely one ofmany "essential parts of a larger

regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated" {Ra- ich, quoting Lopez, 514 U.S., at 561). The majority observed that,

unlike the activities regulated in Lopez and Morrison, the "activities

regulated bv the CSA are auintessentiallv economic" (Raich, 25).

The Court reached a related conclusion in a later case, Witters v. Wachovia (2007 U.S. Lexis 4336). Waiters illustrates the point that

the Court acts as a traffic cop in commercial relations involving competing state and federal regulatory schemes. In Witters, the state

ofMichigan challenged the reach of Congress's regulatory powers over banking activities on the basis of the Tenth Amendment. The Court ruled that the Tenth Amendment was not even implicated, as bank operations are a clear prerogative of Congress under the com- merce and necessary and proper clauses.

Thus, the Court is (1) continuing to apply its principle that the statu-

tory scheme must regulate activity that affects interstate commerce to pass commerce clause muster; (2) continuing to assert its own

authority to assess whether Congress had a rational basis for finding that the activity substantially affected interstate commerce; and (3)

which was otherwise legal under California law. Antagonists of the

federalism revolution viewed Raich as the resounding end to an

ill-begotten effort. Ponnuru observed, post-Raich, that "[o]ne has to ask, at this point, what conservatives have gained by attempting to get the courts to impose limits on congressional authority. The Court cannot impose federalism over the objections of the other

branches of the government. That project was never likely to succeed and is now over" (2005, 34-35). Lazarus suggested that Raich stands

contrary to "Rehnquist Court's half-aborted initiative and squarely behind the view that American federalism exists primarily to expand democratic options for the people- not to empower judges to

arbitrarily trump the choices of their elected representatives" (2006, 9). Proponents of the new federalism direction criticized Raich for

failing to provide what Lopez had offered: a contextual analysis of the circumstances under which congressional reach or regulation was justified (Coleman 2006, 862).

Concerning the line of the Courts federalism cases, we propose that "continued conversation" is a more appropriate descriptor than

"revolution" or "post-revolution." The history of federalism jurispru- dence does not support the polar prescriptions for federalism that

Raich's advocates and antagonists have suggested. We argue that Ra- ich and several other post-2000 cases represent additional points in a federalism conversation that continues to develop. Barnett supports this proposition relative to Raich's, holding that "federalism lives as

a 'first principle' of constitutional law because no Court has had the

temerity to kill it outright And if the New Deal Court could not take that step, neither will a future Court" (2005, 750).

To substantiate our proposition, we offer analyses at the national and state levels that take up a multiprovisional approach (Wise 2001). For public administrators, "a fuller picture [of federalism] comes into focus when we examine the various bases for the exercise of federal power and what the Court has said about them" (Wise 2001, 343). In considering the latest developments in the federalism conversation at the national and state levels, we contemplate these bases to include the commerce clause; Fifth Amendment; election clause; spending clause; Tenth, Eleventh, and Fourteenth amend- ments; as well as selected statutory interpretations by the Court.

Analysis: National Boundaries of the Revolution

Commerce Clause As mentioned earlier, the Court in United States v.Lopez invalidated the Gun-Free School Zones Act. The Court's majority opinion set

out the criteria for assessing valid statutes within the commerce clause, stating that they should be sustained if it could be shown that the activity to be regulated "substantially affects" interstate commerce (115 S.Ct. 1640 [1995]). In a subsequent case, United States v.Morrison, the Court struck down a part of the Violence

Against Women Act on similar grounds, finding that gender-moti- vated crimes ofviolence do not, in any sense of the phrase, consti- tute economic activity (120 S.Ct. 1751 [2000]). The Court stated that the existence of findings is not sufficient by itself to sustain the

constitutionality of commerce clause legislation (120 S.Ct. 1751, 1752).

In Gonzales ν.Raich, the Court heard a constitutional challenge to the Controlled Substances Act (21 U.S.C. sec. 801 et seq.) from

922 Public Administration Review · September! October 2009

two California residents who sought to avail themselves ofmari-

juana pursuant to a California statute that created an exception for

marijuana use prescribed for a medical condition. The residents

asserted (citing Morrison) that the Controlled Substances Act could not constitutionally be applied to their activities because Congress had not made a specific finding that the intrastate cultivation and

possession ofmarijuana for medical purposes based on the rec-

ommendation of a physician would substantially affect the larger interstate marijuana market. The Court's majority, however, found

that Congress had made findings regarding the effects of intr-

astate drug activity on interstate commerce, and observed that the

court of appeals had found that those findings weighed in favor of

upholding the constitutionality of the act (352 F.3d. 1222, 1232

[2003]). Further, the Court's majority, citing Lopez, observed that

the Court never required Congress to make particularized findings in order to legislate, and asserted that "while congressional findings are certainly helpful in reviewing the substance of a congressional

statutory scheme, particularly when the connection to commerce is

not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized

findings does not call into question Congress' authority to legislate"

{Gonzales ν.Raich, 545 U.S. 1, 21 [2005]). The majority observed

that they "need not determine whether the residents' activities,

taken in the aggregate, substantially affect interstate commerce in

fact, only whether a 'rational basis' exists for so concluding" {Raich,

22, referencing Lopez). The majority went on to find that Congress had a rational basis for concluding that leaving home-consumed

marijuana outside federal control would similarly affect price and market conditions {Raich, 20). The residents had relied on the

Court s opinions in Lopez and Morrison, but the Court majority found that they had misapplied them. The Court concluded that,

in this case, the residents were asking the Court to excise individual

applications of a concededly valid statutory scheme, whereas in both

Lopez and Morrison, the parties had asserted that a particular statute

or provision fell outside commerce power in its entirety. Further, the

Court observed that in Lopez, the act did not regulate any economic

activity, whereas in this case, Congress's classification and regulation ofmarijuana was merely one ofmany "essential parts of a larger

regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated" {Ra- ich, quoting Lopez, 514 U.S., at 561). The majority observed that,

unlike the activities regulated in Lopez and Morrison, the "activities

regulated bv the CSA are auintessentiallv economic" (Raich, 25).

The Court reached a related conclusion in a later case, Witters v. Wachovia (2007 U.S. Lexis 4336). Waiters illustrates the point that

the Court acts as a traffic cop in commercial relations involving competing state and federal regulatory schemes. In Witters, the state

ofMichigan challenged the reach of Congress's regulatory powers over banking activities on the basis of the Tenth Amendment. The Court ruled that the Tenth Amendment was not even implicated, as bank operations are a clear prerogative of Congress under the com- merce and necessary and proper clauses.

Thus, the Court is (1) continuing to apply its principle that the statu-

tory scheme must regulate activity that affects interstate commerce to pass commerce clause muster; (2) continuing to assert its own

authority to assess whether Congress had a rational basis for finding that the activity substantially affected interstate commerce; and (3)

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

mas and international waters from a base in Charleston. On all the

trips, passengers would be permitted to participate in gambling activities while on board. The Ports Authority repeatedly denied the

company's requests, contending that ithad an established policy of

denying berths in Charleston to vessels whose primary purpose was

gambling. The company filed a complaint with the Federal Mari- time Commission, contending that the refusal violated the Shipping Act by allowing another company that allowed gambling on itsships to berth ships in Charleston. The Federal Maritime Commission administrative law judge hearing the case granted South Carolina's motion to dismiss the case on the grounds that the Ports Authority, as an arm of the state of South Carolina, was entitled to Eleventh Amendment immunity from the company's suit. While the compa- ny did not appeal the administrative law judges ruling, the Federal Maritime Commission on its own motion decided to review the

ruling, and concluded that the doctrine of state sovereign immunity was meant to cover proceedings before judicial tribunals, and not executive branch agencies such as the Federal Maritime Commis-

sion, and then reversed the administrative law judge's decision.

The Supreme Court reiterated that the preeminent purpose of state

sovereign immunity is to accord states the dignity that isconsist- ent with their status as sovereign entities. It went on to declare, "Given both this interest in protecting States' dignity and the strong similarities between FMC proceedings and civil litigation, we hold that state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting State.

Simply put, if the framers thought itan impermissible affront to

a State's dignity to be required to answer the complaints of private

parties in federal courts, we cannot imagine that they would have

found itacceptable to compel a state to do exactly the same thing before an administrative tribunal of an agency, such as the FMC" (535 U.S. 743, 760). The Federal Maritime Commission attempted to assert federal commerce clause authority by maintaining that sov-

ereign immunity should not bar itfrom adjudicating the company's

complaint because the constitutional necessity of uniformity in the

regulation ofmaritime commerce limits the states' sovereignty with

respect to the federal government's authority to regulate that com-

merce. The Supreme Court, however, reaffirmed itsconclusion in

a previous sovereign immunity case, Seminole Tribe v.Florida (517 U.S. 44 [1996]), that "the background principle of sovereign immu-

nity embodied in the Eleventh Amendment is not so ephemeral as

to dissipate when the subject of the suit is an area . . . that is under

the exclusive control of the Federal Government. Thus, 'even when

the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congres- sional authorization of suits by private parties against unconsenting States'" (535 U.S. 743, 768, quoting Seminole Tribe). Finally, the

Court opined, "While some might complain that our dual sover-

eignty is not a model of administrative convenience, that is not its purpose. Rather, 'the constitutionally mandated balance of power between the States and the Federal Government was adopted by the

Framers to ensure the protection of our fundamental liberties'" (535 U.S. 743, 769, quoting Atascadero State Hospital v.Scanlon).

Fourteenth Amendment The Fourteenth Amendment has also served as a foundation on which courts have calculated the federalism balance. Section 5 of

the Fourteenth Amendment contains an enactment clause giving

The Federalism Revolution and Its Meaning for Public Administration 923

asserting that Congress's legislation did not have to contain detailed

findings proving that each activity regulated within a comprehensive scheme is essential to the statutory scheme.

Federal Statutory Interpretation Another case involving the Controlled Substances Act, while

involving statutory interpretation rather than a commerce clause constitutional challenge, nonetheless demonstrated that the Court would not refrain from stepping in to defend state prerogatives from

federal interference. Gonzales ν.Oregon (126 S.Ct. 917 [2006]) involved the Oregon Death with Dignity Act (Ore. Rev. Stat. sec. 127.800 et seq.), which legalized assisted suicide. The U.S. attorney general issued an interpretive rule addressing the interpretation and enforcement of the Controlled Substances Act, specifying that the

use of controlled substances to assist in suicide is not a legitimate medical practice and that dispensing or prescribing them for this

purpose is unlawful under the act, and the challenge to the rule was before the Court. The Court examined the statute to determine the

authority of the attorney general to issue the rule and found that his

authority was specifically confined to promulgating rules relating

only to "registration" and "control" and "for the efficient execu-

tion of his functions under the statute. The Court concluded that

the interpretive rule did not concern the scheduling of substances and was not issued after the required procedures for rules regarding

scheduling, so itcould not fall under the attorney general's "control"

authority (126 S.Ct. 917 [2006]). The Court further examined the

statute to see whether itcould be used to regulate physician-assisted suicide. The Court s analysis yielded the conclusion that itcould not, and itparticularly referred to state prerogatives to regulate medical practice: "The Statute and our case law amply support the

conclusion that Congress regulates medical practice insofar as itbars doctors from using their prescription-writing powers as a means

to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent

to regulate the practice ofmedicine generally. The silence is under-

standable given the structure and limitations of federalism, which

allow the States 'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons'" (126 S.Ct. 917, 923 [2006]; citations omitted). The

government tried to advance the argument that the attorney gener- al's authority to decide whether a physicians actions are inconsist-

ent with the "public interest" provides the basis forthe interpretive rule. The Court rejected this argument, and opined, "Just as the

conventions of expression indicate that Congress is unlikely to alter

a statute's obvious scope and division of authority through muffled

hints, the background principles of our federal system also belie the

notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the States' police pow- ers" (126 S.Ct. 917, 924 [2006]).

A different statute in potential conflict with Eleventh Amendment

sovereign immunity protection forthe states was at issue in Federal

Maritime Commission u South Carolina State PortsAuthority (535 U.S. 743 [2002]). The question in that case was whether state

sovereign immunity precluded the Federal Maritime Commission from adjudicating a private party's complaint that a state-run port had violated the Shipping Act of 1984 (46 U.S.C., App. See. 1701 et. seq). The case began when a company asked the State Ports

Authority to berth a cruise ship, which would cruise in the Baha-

mas and international waters from a base in Charleston. On all the

trips, passengers would be permitted to participate in gambling activities while on board. The Ports Authority repeatedly denied the

company's requests, contending that ithad an established policy of

denying berths in Charleston to vessels whose primary purpose was

gambling. The company filed a complaint with the Federal Mari- time Commission, contending that the refusal violated the Shipping Act by allowing another company that allowed gambling on itsships to berth ships in Charleston. The Federal Maritime Commission administrative law judge hearing the case granted South Carolina's motion to dismiss the case on the grounds that the Ports Authority, as an arm of the state of South Carolina, was entitled to Eleventh Amendment immunity from the company's suit. While the compa- ny did not appeal the administrative law judges ruling, the Federal Maritime Commission on its own motion decided to review the

ruling, and concluded that the doctrine of state sovereign immunity was meant to cover proceedings before judicial tribunals, and not executive branch agencies such as the Federal Maritime Commis-

sion, and then reversed the administrative law judge's decision.

The Supreme Court reiterated that the preeminent purpose of state

sovereign immunity is to accord states the dignity that isconsist- ent with their status as sovereign entities. It went on to declare, "Given both this interest in protecting States' dignity and the strong similarities between FMC proceedings and civil litigation, we hold that state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting State.

Simply put, if the framers thought itan impermissible affront to

a State's dignity to be required to answer the complaints of private

parties in federal courts, we cannot imagine that they would have

found itacceptable to compel a state to do exactly the same thing before an administrative tribunal of an agency, such as the FMC" (535 U.S. 743, 760). The Federal Maritime Commission attempted to assert federal commerce clause authority by maintaining that sov-

ereign immunity should not bar itfrom adjudicating the company's

complaint because the constitutional necessity of uniformity in the

regulation ofmaritime commerce limits the states' sovereignty with

respect to the federal government's authority to regulate that com-

merce. The Supreme Court, however, reaffirmed itsconclusion in

a previous sovereign immunity case, Seminole Tribe v.Florida (517 U.S. 44 [1996]), that "the background principle of sovereign immu-

nity embodied in the Eleventh Amendment is not so ephemeral as

to dissipate when the subject of the suit is an area . . . that is under

the exclusive control of the Federal Government. Thus, 'even when

the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congres- sional authorization of suits by private parties against unconsenting States'" (535 U.S. 743, 768, quoting Seminole Tribe). Finally, the

Court opined, "While some might complain that our dual sover-

eignty is not a model of administrative convenience, that is not its purpose. Rather, 'the constitutionally mandated balance of power between the States and the Federal Government was adopted by the

Framers to ensure the protection of our fundamental liberties'" (535 U.S. 743, 769, quoting Atascadero State Hospital v.Scanlon).

Fourteenth Amendment The Fourteenth Amendment has also served as a foundation on which courts have calculated the federalism balance. Section 5 of

the Fourteenth Amendment contains an enactment clause giving

The Federalism Revolution and Its Meaning for Public Administration 923

asserting that Congress's legislation did not have to contain detailed

findings proving that each activity regulated within a comprehensive scheme is essential to the statutory scheme.

Federal Statutory Interpretation Another case involving the Controlled Substances Act, while

involving statutory interpretation rather than a commerce clause constitutional challenge, nonetheless demonstrated that the Court would not refrain from stepping in to defend state prerogatives from

federal interference. Gonzales ν.Oregon (126 S.Ct. 917 [2006]) involved the Oregon Death with Dignity Act (Ore. Rev. Stat. sec. 127.800 et seq.), which legalized assisted suicide. The U.S. attorney general issued an interpretive rule addressing the interpretation and enforcement of the Controlled Substances Act, specifying that the

use of controlled substances to assist in suicide is not a legitimate medical practice and that dispensing or prescribing them for this

purpose is unlawful under the act, and the challenge to the rule was before the Court. The Court examined the statute to determine the

authority of the attorney general to issue the rule and found that his

authority was specifically confined to promulgating rules relating

only to "registration" and "control" and "for the efficient execu-

tion of his functions under the statute. The Court concluded that

the interpretive rule did not concern the scheduling of substances and was not issued after the required procedures for rules regarding

scheduling, so itcould not fall under the attorney general's "control"

authority (126 S.Ct. 917 [2006]). The Court further examined the

statute to see whether itcould be used to regulate physician-assisted suicide. The Court s analysis yielded the conclusion that itcould not, and itparticularly referred to state prerogatives to regulate medical practice: "The Statute and our case law amply support the

conclusion that Congress regulates medical practice insofar as itbars doctors from using their prescription-writing powers as a means

to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent

to regulate the practice ofmedicine generally. The silence is under-

standable given the structure and limitations of federalism, which

allow the States 'great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons'" (126 S.Ct. 917, 923 [2006]; citations omitted). The

government tried to advance the argument that the attorney gener- al's authority to decide whether a physicians actions are inconsist-

ent with the "public interest" provides the basis forthe interpretive rule. The Court rejected this argument, and opined, "Just as the

conventions of expression indicate that Congress is unlikely to alter

a statute's obvious scope and division of authority through muffled

hints, the background principles of our federal system also belie the

notion that Congress would use such an obscure grant of authority to regulate areas traditionally supervised by the States' police pow- ers" (126 S.Ct. 917, 924 [2006]).

A different statute in potential conflict with Eleventh Amendment

sovereign immunity protection forthe states was at issue in Federal

Maritime Commission u South Carolina State PortsAuthority (535 U.S. 743 [2002]). The question in that case was whether state

sovereign immunity precluded the Federal Maritime Commission from adjudicating a private party's complaint that a state-run port had violated the Shipping Act of 1984 (46 U.S.C., App. See. 1701 et. seq). The case began when a company asked the State Ports

Authority to berth a cruise ship, which would cruise in the Baha-

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

whether the FMLA satisfied Boernes congruence and proportion- ality requirement, and found that Congress satisfied this as well.

The FMLA's aim is to prevent the injury of sex discrimination in the workplace. By allowing men and women equal access to a minimum of 12 weeks of leave forfamily and medical reasons, the

Court found that Congress "attack [ed] the formerly state-sanctioned

stereotype that only women are responsible forfamily care giving,

thereby reducing employers' incentives to engage in discrimination

by basing hiring and promotion decisions on stereotypes" (Hibbs, 538 U.S. 721, 737). Furthermore, the Court distinguished Hibbs

by ruling that "[u]nlike the statutes at issue in City ofBoerne, [and] Kimel . . . ,which applied broadly to every aspect of state employ- ers' operations, the FMLA is narrowly targeted at the faultline

between work and family-precisely where sex-based overgeneraliza- tion has been and remains strongest-and affects only one aspect of

the employment relationship" (538 U.S. 721, 738). The Court was

especially persuaded by restrictions on the FMLAs scope that itdid not find in the City ofBoerne and Kimel cases. These restrictions in-

cluded the FMLAs application to only unpaid leave, employees with

a minimum service record, and the exclusion of elected or sensitive

employees.

In 2004, the Court continued this theme when ithanded down its decision in Tennessee v.Lane (541 U.S. 509). Lane considered whether Congress, in the Americans With Disabilities Act (ADA), violated Eleventh Amendment state sovereign immunity by allow-

ing plaintiffs to sue states for alleged ADA violations. The disabled

plaintiffs in this case were unable to access the upper stories of a Tennessee state courthouse. They brought suit against the state of

Tennessee in federal court, alleging that the state had violated Title II of the ADA ("no person, based on disability, shall be denied ac-

cess to public services"). Tennessee countered that itwas protected from such suits based on the Eleventh Amendment s provision of state sovereign immunity. Based on the facts of the case, a 5-4 Court held that the ADA does not violate the Eleventh Amend-

ment, and that Congress properly exercised its authority. First, the Court reasoned that the ADA specifically clarified Congress's intent to abrogate state power to ensure due process to disabled citizens. Second, the Court ruled that such an abrogation was

justified based on Congress's section 5 enforcement powers. It rea-

soned that "Congress' chosen remedy for the pattern of exclusion and discrimination [at issue], Title Us requirement of program ac-

cessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The unequal treatment of disabled

persons in the administration of judicial services has a long his-

tory,and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in the [ADA's prophylactic measures]" (541 U.S. 509, 531).

In 2006, the Court further clarified the two-part federalism issues

present in Hibbs and Lane, again with respect to Title II of the ADA involved in Lane. The Court seemingly expanded itsfederalism jurisprudence in the consolidated cases of United States v.Georgia! Goodman v.Georgia {5A6 U.S. 151 [2006]). At issue in these cases was whether Title II of the ADA properly abrogated states' im-

munity, and if so, whether the abrogation was a properly exercised extension of Congress's section 5 powers.

Congress "the power to enforce, by appropriate legislation, the

provisions" of the Fourteenth Amendment. With respect to the

federalism balance, Wise explains that "the Court has been con- cerned that Congress, under the guise of enforcing rights, may be

enunciating rights that are not reasonably within its constitutional

prerogatives" (2001, 346). Jurisprudence under the early Rehnquist Court clarified that

Congress cannot use Section 5 to override the Court's con-

temporary interpretation of the Eleventh Amendment pro-

tecting the states from suit in policy areas that are not squarely within the purview of the Fourteenth Amendment. In

addition, in situations in which Congress does act within the

appropriate boundaries of the Fourteenth Amendment, and where itseeks to override state sovereign immunity, itmust be

crystal clear that itintends to override. (Wise 2001, 348)

The Court has provided an important distinction from past deci-

sions in this regard. In 2003, the Court heard Nevada Department ofHuman Resources v.Hibbs (538 U.S. 721). Hibbs was a state

employee who had applied forleave under the Family and Medi- cal Leave Act (FMLA) of 1993 in order to care forhis ailing wife.

The public agency employing Hibbs granted 12 weeks of leave, as

guaranteed by the FMLA, between certain dates. After Hibbs had taken some of the leave intermittently, he did not return to work

and, after notice, was terminated before the end of the calendar year. Hibbs sued forequitable relief and money damages under specific FMLA provisions permitting such private action.

With respect to public employers, the FMLAs enactment is based

primarily on the section 5 authority of the Fourteenth Amendment, which abrogates states' Eleventh Amendment immunity in order

to facilitate enforcement of the specific interests of the FMLA. At issue in the Hibbs case was whether FMLA suits fordamages against states are constitutionally permissible. In a 6-3 opinion written by

Rehnquist, the Court ruled that such suits are permissible based on two considerations, drawn from previous section 5 cases in which

Congress's powers were circumscribed by the Court in Kimel v. Florida Board ofRegents (528 U.S. 62, [2000]), in which the Court ruled that states, if rationally motivated, may discriminate based on

age, and in City ofBoerne v.Flores (521 U.S. 507 [1997]), in which the Court ruled that there "must be a congruence and proportional- itybetween the injury to be prevented or remedied and the means

adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect" (521 U.S. 507, 520).

In Hibbs, the Court pursued a two-step analysis. First, the Court looked at Kimeh specification that Congress give clear notice to states when itintends to abrogate their immunity through section 5 of the Fourteenth Amendment. The Court reviewed the language of the FMLA and found that Congress gave clear notice to states by using such words allowing suits "against any employer that interfere [d] with,

restrain[ed], or den[ied] the exercise of" FMLA guarantees.

Second, the Court analyzed the FMLA under requirements high- lighted in City ofBoerne. First, when Congress does rightly abrogate state immunity, itmust do so within the proper scope of section 5

powers. In Hibbs, the Court found that Congress met this require- ment in the language of the FMLA. The Court also considered

924 Public Administration Review · September! October 2009

whether the FMLA satisfied Boernes congruence and proportion- ality requirement, and found that Congress satisfied this as well.

The FMLA's aim is to prevent the injury of sex discrimination in the workplace. By allowing men and women equal access to a minimum of 12 weeks of leave forfamily and medical reasons, the

Court found that Congress "attack [ed] the formerly state-sanctioned

stereotype that only women are responsible forfamily care giving,

thereby reducing employers' incentives to engage in discrimination

by basing hiring and promotion decisions on stereotypes" (Hibbs, 538 U.S. 721, 737). Furthermore, the Court distinguished Hibbs

by ruling that "[u]nlike the statutes at issue in City ofBoerne, [and] Kimel . . . ,which applied broadly to every aspect of state employ- ers' operations, the FMLA is narrowly targeted at the faultline

between work and family-precisely where sex-based overgeneraliza- tion has been and remains strongest-and affects only one aspect of

the employment relationship" (538 U.S. 721, 738). The Court was

especially persuaded by restrictions on the FMLAs scope that itdid not find in the City ofBoerne and Kimel cases. These restrictions in-

cluded the FMLAs application to only unpaid leave, employees with

a minimum service record, and the exclusion of elected or sensitive

employees.

In 2004, the Court continued this theme when ithanded down its decision in Tennessee v.Lane (541 U.S. 509). Lane considered whether Congress, in the Americans With Disabilities Act (ADA), violated Eleventh Amendment state sovereign immunity by allow-

ing plaintiffs to sue states for alleged ADA violations. The disabled

plaintiffs in this case were unable to access the upper stories of a Tennessee state courthouse. They brought suit against the state of

Tennessee in federal court, alleging that the state had violated Title II of the ADA ("no person, based on disability, shall be denied ac-

cess to public services"). Tennessee countered that itwas protected from such suits based on the Eleventh Amendment s provision of state sovereign immunity. Based on the facts of the case, a 5-4 Court held that the ADA does not violate the Eleventh Amend-

ment, and that Congress properly exercised its authority. First, the Court reasoned that the ADA specifically clarified Congress's intent to abrogate state power to ensure due process to disabled citizens. Second, the Court ruled that such an abrogation was

justified based on Congress's section 5 enforcement powers. It rea-

soned that "Congress' chosen remedy for the pattern of exclusion and discrimination [at issue], Title Us requirement of program ac-

cessibility, is congruent and proportional to its object of enforcing the right of access to the courts. The unequal treatment of disabled

persons in the administration of judicial services has a long his-

tory,and has persisted despite several legislative efforts to remedy the problem of disability discrimination. Faced with considerable evidence of the shortcomings of previous legislative responses, Congress was justified in the [ADA's prophylactic measures]" (541 U.S. 509, 531).

In 2006, the Court further clarified the two-part federalism issues

present in Hibbs and Lane, again with respect to Title II of the ADA involved in Lane. The Court seemingly expanded itsfederalism jurisprudence in the consolidated cases of United States v.Georgia! Goodman v.Georgia {5A6 U.S. 151 [2006]). At issue in these cases was whether Title II of the ADA properly abrogated states' im-

munity, and if so, whether the abrogation was a properly exercised extension of Congress's section 5 powers.

Congress "the power to enforce, by appropriate legislation, the

provisions" of the Fourteenth Amendment. With respect to the

federalism balance, Wise explains that "the Court has been con- cerned that Congress, under the guise of enforcing rights, may be

enunciating rights that are not reasonably within its constitutional

prerogatives" (2001, 346). Jurisprudence under the early Rehnquist Court clarified that

Congress cannot use Section 5 to override the Court's con-

temporary interpretation of the Eleventh Amendment pro-

tecting the states from suit in policy areas that are not squarely within the purview of the Fourteenth Amendment. In

addition, in situations in which Congress does act within the

appropriate boundaries of the Fourteenth Amendment, and where itseeks to override state sovereign immunity, itmust be

crystal clear that itintends to override. (Wise 2001, 348)

The Court has provided an important distinction from past deci-

sions in this regard. In 2003, the Court heard Nevada Department ofHuman Resources v.Hibbs (538 U.S. 721). Hibbs was a state

employee who had applied forleave under the Family and Medi- cal Leave Act (FMLA) of 1993 in order to care forhis ailing wife.

The public agency employing Hibbs granted 12 weeks of leave, as

guaranteed by the FMLA, between certain dates. After Hibbs had taken some of the leave intermittently, he did not return to work

and, after notice, was terminated before the end of the calendar year. Hibbs sued forequitable relief and money damages under specific FMLA provisions permitting such private action.

With respect to public employers, the FMLAs enactment is based

primarily on the section 5 authority of the Fourteenth Amendment, which abrogates states' Eleventh Amendment immunity in order

to facilitate enforcement of the specific interests of the FMLA. At issue in the Hibbs case was whether FMLA suits fordamages against states are constitutionally permissible. In a 6-3 opinion written by

Rehnquist, the Court ruled that such suits are permissible based on two considerations, drawn from previous section 5 cases in which

Congress's powers were circumscribed by the Court in Kimel v. Florida Board ofRegents (528 U.S. 62, [2000]), in which the Court ruled that states, if rationally motivated, may discriminate based on

age, and in City ofBoerne v.Flores (521 U.S. 507 [1997]), in which the Court ruled that there "must be a congruence and proportional- itybetween the injury to be prevented or remedied and the means

adopted to that end. Lacking such a connection, legislation may become substantive in operation and effect" (521 U.S. 507, 520).

In Hibbs, the Court pursued a two-step analysis. First, the Court looked at Kimeh specification that Congress give clear notice to states when itintends to abrogate their immunity through section 5 of the Fourteenth Amendment. The Court reviewed the language of the FMLA and found that Congress gave clear notice to states by using such words allowing suits "against any employer that interfere [d] with,

restrain[ed], or den[ied] the exercise of" FMLA guarantees.

Second, the Court analyzed the FMLA under requirements high- lighted in City ofBoerne. First, when Congress does rightly abrogate state immunity, itmust do so within the proper scope of section 5

powers. In Hibbs, the Court found that Congress met this require- ment in the language of the FMLA. The Court also considered

924 Public Administration Review · September! October 2009

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

Rehnquist wrote the majority opinion in South Dakota v.Dole (483 U.S. 203, 207-208 [1987]), wherein he reasoned that spending clause

powers are conditioned on several considerations. First,congressional authority exercised based on spending power must achieve "general welfare." In cases in which such powers promote general public objec- tives, courts generally defer to Congress. However, regarding deference to states' authority, Congress can only condition federal funds on

particular state behaviors ifdone overtly and unambiguously. Third,

any conditions on federal funds must be related to national priorities. Fourth, the judiciary reserves the right to enforce constitutional provi- sions that may prohibit conditional grants.

Despite the Court s assertion that federal spending powers are not

unlimited, many observers saw little real restraint or application of the Courts stated guidelines. More recent cases suggest that the

federalism revolutions did not reach the spending clause area, but the current Court may be curbing some of the Court's past defer-

ence to Congress.

In 2004, the Court decided Frew v.Hawkins (540 U.S. 431). The case implicates spending clause jurisprudence because the litigation was based on the state ofTexas's decision to accept federal funds to

operate its Medicaid programs. Pursuant to cooperative federal-state

funding requirements, Texas was required to operate a program called Early and Periodic Screening, Diagnosis, and Treatment

(EPSDT). Plaintiffs alleged that Texas had failed to meet itsobliga- tions in operating the EPSDT program, citing, among other things,

mismanagement of cases, lack of uniformity in service provision, and failure to give notice of eligibility and available services.

Texas agencies initially claimed Eleventh Amendment immunity, but state officials remained in the suit and entered into a consent de-

cree approved in federal court. Two years later, the plaintiffs brought this suit, claiming that Texas still failed to meet EPSDT obligations.

At issue was whether the Eleventh Amendment bars suits against state officials when those officials have entered a federal consent de-

cree. In a unanimous decision, the Court ruled that enforcement of

the consent decree does not violate Eleventh Amendment immunity. The Court reasoned that because the dispute arises from a federal

dispute, concerning federal objectives, the consent decree isenforce- able in federal courts.

The Court directly engaged consideration of federalism principles

by noting that when litigation "requires a detailed order to ensure

compliance with a decree for prospective relief,and the decree in

effectmandates the State, through its named officials, to administer

a significant federal program, principles of federalism require that

state officials with front-line responsibility foradministering the

program be given latitude and substantial discretion. ... If the State

establishes reason to modify the decree, the court should make the

necessary changes; where ithas not done so, however, the decree

should be enforced according to itsterms" (540 U.S. 431, 442).

In Frew, the Court distinguished itsenforcement from cases con-

cerning only state officials' violations of state law. The Frew decree

"reflects a choice among various ways that a State could implement the Medicaid Act. As a result, enforcing the decree vindicates an

agreement that the state officials reached to comply with federal

The Federalism Revolution and Its Meaning for Public Administration 925

Goodman was a Georgia state prison inmate and paraplegic. He sued the state ofGeorgia in federal court, alleging that prison con- ditions violated Title II of the ADA. The relevant portion ofTitle II states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a pub- lic entity, or be subjected to discrimination by any such entity." Goodman asserted that the evidence of such violations included

• A cell in which he could not turn his wheelchair • No wheelchair-accessible toilet or shower • Lack of assistance in using nonaccessible facilities • Denial of physical therapy and "virtually all" other prison

programs and services

Title II allows private citizens to sue public entities formoney dam-

ages when ADA violations have occurred. The Court ruled that Title II properly abrogated state immunity because of Congress's clear

statements made in the ADA. The Court observed that Congress

specifically drew on the enforcement power of the Fourteenth

Amendment in enacting the ADA. Further, the ADA specifi-

cally states that "[a] State shall not be immune under the eleventh

amendment to the Constitution of the United States from an action

in [a] Federal or State court of competent jurisdiction fora violation of this chapter." The Court relied on this last statement as an "un-

equivocal expression of Congress's intent to abrogate state sovereign

immunity" (546 U.S. 151, 154).

The Court incorporated into the firstissue itsconsideration of the

second issue- whether the abrogation was properly exercised within

Section 5 powers. The Court said that "[w]hile the Members of this

Court have disagreed regarding the scope of Congress's 'prophylac- tic' enforcement powers under §5 of the Fourteenth Amendment.

. . . insofar as Title II creates a private cause of action fordamages

against the States forconduct that actually violates the Fourteenth

Amendment, Title II validly abrogates state sovereign immunity"

(546 U.S. 151,157).

The Court's conclusion with respect to federalism is that Congress's section 5 enforcement power includes the power to abrogate states'

immunity in the event that states violate substantive provisions of

the Constitution (in this case, section 1of the Fourteenth Amend-

ment) rather than prophylactic legislation enacted under Congress's section 5 powers.

In sum, recent cases validating FMLA and ADA provisions seem to

expand judicial deference to Congress's scope of power under sec-

tion 5 of the Fourteenth Amendment.

Spending Clause

Congressional spending authority (U.S. Constitution, Article I,

section 8, clause 1) has long been an important dynamic in deter-

mining the balance of federalism. Discussed in greater detail here,

the spending clause serves as the foundation that facilitates federal

conditions on monies granted to states in order to further policy

priorities.

In the past, the Supreme Court granted Congress expansive pow- erswith respect to these spending powers (Wise 2001). ChiefJustice

Rehnquist wrote the majority opinion in South Dakota v.Dole (483 U.S. 203, 207-208 [1987]), wherein he reasoned that spending clause

powers are conditioned on several considerations. First,congressional authority exercised based on spending power must achieve "general welfare." In cases in which such powers promote general public objec- tives, courts generally defer to Congress. However, regarding deference to states' authority, Congress can only condition federal funds on

particular state behaviors ifdone overtly and unambiguously. Third,

any conditions on federal funds must be related to national priorities. Fourth, the judiciary reserves the right to enforce constitutional provi- sions that may prohibit conditional grants.

Despite the Court s assertion that federal spending powers are not

unlimited, many observers saw little real restraint or application of the Courts stated guidelines. More recent cases suggest that the

federalism revolutions did not reach the spending clause area, but the current Court may be curbing some of the Court's past defer-

ence to Congress.

In 2004, the Court decided Frew v.Hawkins (540 U.S. 431). The case implicates spending clause jurisprudence because the litigation was based on the state ofTexas's decision to accept federal funds to

operate its Medicaid programs. Pursuant to cooperative federal-state

funding requirements, Texas was required to operate a program called Early and Periodic Screening, Diagnosis, and Treatment

(EPSDT). Plaintiffs alleged that Texas had failed to meet itsobliga- tions in operating the EPSDT program, citing, among other things,

mismanagement of cases, lack of uniformity in service provision, and failure to give notice of eligibility and available services.

Texas agencies initially claimed Eleventh Amendment immunity, but state officials remained in the suit and entered into a consent de-

cree approved in federal court. Two years later, the plaintiffs brought this suit, claiming that Texas still failed to meet EPSDT obligations.

At issue was whether the Eleventh Amendment bars suits against state officials when those officials have entered a federal consent de-

cree. In a unanimous decision, the Court ruled that enforcement of

the consent decree does not violate Eleventh Amendment immunity. The Court reasoned that because the dispute arises from a federal

dispute, concerning federal objectives, the consent decree isenforce- able in federal courts.

The Court directly engaged consideration of federalism principles

by noting that when litigation "requires a detailed order to ensure

compliance with a decree for prospective relief,and the decree in

effectmandates the State, through its named officials, to administer

a significant federal program, principles of federalism require that

state officials with front-line responsibility foradministering the

program be given latitude and substantial discretion. ... If the State

establishes reason to modify the decree, the court should make the

necessary changes; where ithas not done so, however, the decree

should be enforced according to itsterms" (540 U.S. 431, 442).

In Frew, the Court distinguished itsenforcement from cases con-

cerning only state officials' violations of state law. The Frew decree

"reflects a choice among various ways that a State could implement the Medicaid Act. As a result, enforcing the decree vindicates an

agreement that the state officials reached to comply with federal

The Federalism Revolution and Its Meaning for Public Administration 925

Goodman was a Georgia state prison inmate and paraplegic. He sued the state ofGeorgia in federal court, alleging that prison con- ditions violated Title II of the ADA. The relevant portion ofTitle II states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a pub- lic entity, or be subjected to discrimination by any such entity." Goodman asserted that the evidence of such violations included

• A cell in which he could not turn his wheelchair • No wheelchair-accessible toilet or shower • Lack of assistance in using nonaccessible facilities • Denial of physical therapy and "virtually all" other prison

programs and services

Title II allows private citizens to sue public entities formoney dam-

ages when ADA violations have occurred. The Court ruled that Title II properly abrogated state immunity because of Congress's clear

statements made in the ADA. The Court observed that Congress

specifically drew on the enforcement power of the Fourteenth

Amendment in enacting the ADA. Further, the ADA specifi-

cally states that "[a] State shall not be immune under the eleventh

amendment to the Constitution of the United States from an action

in [a] Federal or State court of competent jurisdiction fora violation of this chapter." The Court relied on this last statement as an "un-

equivocal expression of Congress's intent to abrogate state sovereign

immunity" (546 U.S. 151, 154).

The Court incorporated into the firstissue itsconsideration of the

second issue- whether the abrogation was properly exercised within

Section 5 powers. The Court said that "[w]hile the Members of this

Court have disagreed regarding the scope of Congress's 'prophylac- tic' enforcement powers under §5 of the Fourteenth Amendment.

. . . insofar as Title II creates a private cause of action fordamages

against the States forconduct that actually violates the Fourteenth

Amendment, Title II validly abrogates state sovereign immunity"

(546 U.S. 151,157).

The Court's conclusion with respect to federalism is that Congress's section 5 enforcement power includes the power to abrogate states'

immunity in the event that states violate substantive provisions of

the Constitution (in this case, section 1of the Fourteenth Amend-

ment) rather than prophylactic legislation enacted under Congress's section 5 powers.

In sum, recent cases validating FMLA and ADA provisions seem to

expand judicial deference to Congress's scope of power under sec-

tion 5 of the Fourteenth Amendment.

Spending Clause

Congressional spending authority (U.S. Constitution, Article I,

section 8, clause 1) has long been an important dynamic in deter-

mining the balance of federalism. Discussed in greater detail here,

the spending clause serves as the foundation that facilitates federal

conditions on monies granted to states in order to further policy

priorities.

In the past, the Supreme Court granted Congress expansive pow- erswith respect to these spending powers (Wise 2001). ChiefJustice

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

law" (540 U.S. 431, 439). The Court asserted the latitude that state

officials should receive and directed lower courts to be responsive accordingly. State officials need to realize, however, that if they enter

into a decree agreement, they will be held to it and will not be able to escape by relying on the Eleventh Amendment.

In 2005, Schaffer ν.Weast (546 U.S. 49) opened a line of Individu- als with Disabilities Education Act (IDEA) jurisprudence in which the Court drew increased attention to the requirements of Congress regarding spending clause authority. In a dispute over the burden of

proof in IDEA services, the Court ruled that

Congress's legislative silence on the matter left

no alternative but to put the burden on par- ties seeking relief- not on the administrative

agencies.

A second, more prolific development in feder-

alism under spending clause authority came in

2006, when the Court heard Arlington Central School District Board ofEducation v.Murphy (126 S. Ct. 2455). This case was predicated by Murphy's parents successfully suing the Ar-

lington Central School District to pay private school tuition for their son under the IDEA. Pursuant to that litigation, the parents sought to recover fees that they had paid to experts who testified in the IDEA case. While the

IDEA specifically allows recovery of "reason- able attorneys tees as part of the costs for

prevailing litigants, at issue is whether, under the IDEA, those reasonable fees include expert witness costs.

The Court, Justice Samuel Alito writing, ruled in a 6-3 decision that

IDEA does not allow recovery of such fees. The Court reminded that Congress's spending clause authority serves as the foundation of the IDEA's enactment. Building upon Doles second spending clause

guideline, the Court clarified that "Congress has broad power to

set the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State's acceptance of federal

funds, the conditions must be set out 'unambiguously " (126 S. Ct.

2455, 2459). At issue here is whether Congress's spending clause au-

thority permitted Murphy's parents to recover expert fees against the

Arlington Central School District. After lengthy analysis, including legislative history, the Court found the IDEA to be ambiguous on the issue of expert fees and ruled that the spending clause does not

justify such recovery. Of note is the Court's finding that legislative intent alone is not sufficient to establish an unambiguous fair notice to states. The Court concluded that "in a Spending Clause case, the

key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds. Here ... we cannot say that the legislative history on which respondents rely is sufficient to

provide the requisite fair notice" (126 S. Ct. 2455, 2463).

The Arlington case suggests that the Court may be pulling away from its expansive interpretation of congressional powers, when under Doles second requirement, federal legislation predicated on

spending clause authority does not fairly or clearly give notice of ob-

ligations to states. The Court emphasized that it would not permit

Congress to infer what is required of the states. The legislation must

state the requirements clearly. This gives the states the chance to

make their opinions known when legislation is being considered and

keeps them from being blindsided after passage.

Analysis: State Boundaries of the Revolution

Dormant Commerce Clause The Supreme Court's role in interpreting the commerce clause as

it affects state and local governments is not confined to scrutiniz-

ing congressional enactments. Perhaps of

equal significance is how the Court applies the so-called dormant commerce clause,

pursuant to which plaintiffs ask the Court to invalidate state statutes that they believe

unfairly discriminate against interstate com- merce. In Granholm v.Held (544 U.S. 460 [2005]), the Court confronted the question ofwhether a state regulatory scheme permit-

ting in-state wineries to directly ship alcohol to consumers but restricting the ability of out-of-state wineries to do so violated the

dormant commerce clause, or whether the

state's activities were shielded by the Twenty- First Amendment.4 The case involved chal-

lenges to statutes in Michigan and New York

that permitted in-state wineries to ship di-

rectly to consumers. Michigan's law required - all out-or-state wine to pass through an in-

state wholesaler and retailer, and New York's,

among other things, required out-of-state wineries to establish an

in-state distribution operation in order to get a license for direct

distribution, and still refused them a "farm winery" license, which

provided the most direct means of shipping to in-state consumers. The Court held that both state statutes discriminated against in-

terstate commerce in violation of the commerce clause. The Court found that the differential treatment between in-state and out-of-

state wineries constituted explicit discrimination against interstate

commerce, and the discrimination substantially limited the direct

sale ofwine to consumers, an otherwise emerging and significant business (544 U.S. 460, 465 [2005]).

With regard to Michigan's and New York's claim that the Twenty- First Amendment granted them the authority for their regulations, the Court found that the history of the amendment and its inter-

pretation did not support their argument. The Court concluded that the aim of the Twenty-First Amendment is to allow states to

maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use, and it does not give states the authority to pass nonuniform laws in order to

discriminate against out-of-state goods (544 U.S. 460, 485 [2005]). The majority's review of the Court's precedents led them to the con- clusion that the recent cases confirm that the Twenty-First Amend- ment does not supersede other provisions of the Constitution and, in particular, does not displace the rule that states may not give a

discriminatory preference to their own producers (544 U.S. 460, 485 [2005]). The Court observed that it previously had upheld state

regulations that discriminate against interstate commerce only in

circumstances in which it found based on concrete evidence that a

The Supreme Court s role in

interpreting the commerce clause as it affects state and local

governments is not confined to scrutinizing congressional enactments. Perhaps of equal significance is how the Court

applies the so-called dormant commerce clause, pursuant to

which plaintiffs ask the Court to invalidate state statutes

that they believe unfairly discriminate against interstate

commerce.

926 Public Administration Review · September |October 2009

law" (540 U.S. 431, 439). The Court asserted the latitude that state

officials should receive and directed lower courts to be responsive accordingly. State officials need to realize, however, that if they enter

into a decree agreement, they will be held to it and will not be able to escape by relying on the Eleventh Amendment.

In 2005, Schaffer ν.Weast (546 U.S. 49) opened a line of Individu- als with Disabilities Education Act (IDEA) jurisprudence in which the Court drew increased attention to the requirements of Congress regarding spending clause authority. In a dispute over the burden of

proof in IDEA services, the Court ruled that

Congress's legislative silence on the matter left

no alternative but to put the burden on par- ties seeking relief- not on the administrative

agencies.

A second, more prolific development in feder-

alism under spending clause authority came in

2006, when the Court heard Arlington Central School District Board ofEducation v.Murphy (126 S. Ct. 2455). This case was predicated by Murphy's parents successfully suing the Ar-

lington Central School District to pay private school tuition for their son under the IDEA. Pursuant to that litigation, the parents sought to recover fees that they had paid to experts who testified in the IDEA case. While the

IDEA specifically allows recovery of "reason- able attorneys tees as part of the costs for

prevailing litigants, at issue is whether, under the IDEA, those reasonable fees include expert witness costs.

The Court, Justice Samuel Alito writing, ruled in a 6-3 decision that

IDEA does not allow recovery of such fees. The Court reminded that Congress's spending clause authority serves as the foundation of the IDEA's enactment. Building upon Doles second spending clause

guideline, the Court clarified that "Congress has broad power to

set the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State's acceptance of federal

funds, the conditions must be set out 'unambiguously " (126 S. Ct.

2455, 2459). At issue here is whether Congress's spending clause au-

thority permitted Murphy's parents to recover expert fees against the

Arlington Central School District. After lengthy analysis, including legislative history, the Court found the IDEA to be ambiguous on the issue of expert fees and ruled that the spending clause does not

justify such recovery. Of note is the Court's finding that legislative intent alone is not sufficient to establish an unambiguous fair notice to states. The Court concluded that "in a Spending Clause case, the

key is not what a majority of the Members of both Houses intend but what the States are clearly told regarding the conditions that go along with the acceptance of those funds. Here ... we cannot say that the legislative history on which respondents rely is sufficient to

provide the requisite fair notice" (126 S. Ct. 2455, 2463).

The Arlington case suggests that the Court may be pulling away from its expansive interpretation of congressional powers, when under Doles second requirement, federal legislation predicated on

spending clause authority does not fairly or clearly give notice of ob-

ligations to states. The Court emphasized that it would not permit

Congress to infer what is required of the states. The legislation must

state the requirements clearly. This gives the states the chance to

make their opinions known when legislation is being considered and

keeps them from being blindsided after passage.

Analysis: State Boundaries of the Revolution

Dormant Commerce Clause The Supreme Court's role in interpreting the commerce clause as

it affects state and local governments is not confined to scrutiniz-

ing congressional enactments. Perhaps of

equal significance is how the Court applies the so-called dormant commerce clause,

pursuant to which plaintiffs ask the Court to invalidate state statutes that they believe

unfairly discriminate against interstate com- merce. In Granholm v.Held (544 U.S. 460 [2005]), the Court confronted the question ofwhether a state regulatory scheme permit-

ting in-state wineries to directly ship alcohol to consumers but restricting the ability of out-of-state wineries to do so violated the

dormant commerce clause, or whether the

state's activities were shielded by the Twenty- First Amendment.4 The case involved chal-

lenges to statutes in Michigan and New York

that permitted in-state wineries to ship di-

rectly to consumers. Michigan's law required - all out-or-state wine to pass through an in-

state wholesaler and retailer, and New York's,

among other things, required out-of-state wineries to establish an

in-state distribution operation in order to get a license for direct

distribution, and still refused them a "farm winery" license, which

provided the most direct means of shipping to in-state consumers. The Court held that both state statutes discriminated against in-

terstate commerce in violation of the commerce clause. The Court found that the differential treatment between in-state and out-of-

state wineries constituted explicit discrimination against interstate

commerce, and the discrimination substantially limited the direct

sale ofwine to consumers, an otherwise emerging and significant business (544 U.S. 460, 465 [2005]).

With regard to Michigan's and New York's claim that the Twenty- First Amendment granted them the authority for their regulations, the Court found that the history of the amendment and its inter-

pretation did not support their argument. The Court concluded that the aim of the Twenty-First Amendment is to allow states to

maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use, and it does not give states the authority to pass nonuniform laws in order to

discriminate against out-of-state goods (544 U.S. 460, 485 [2005]). The majority's review of the Court's precedents led them to the con- clusion that the recent cases confirm that the Twenty-First Amend- ment does not supersede other provisions of the Constitution and, in particular, does not displace the rule that states may not give a

discriminatory preference to their own producers (544 U.S. 460, 485 [2005]). The Court observed that it previously had upheld state

regulations that discriminate against interstate commerce only in

circumstances in which it found based on concrete evidence that a

The Supreme Court s role in

interpreting the commerce clause as it affects state and local

governments is not confined to scrutinizing congressional enactments. Perhaps of equal significance is how the Court

applies the so-called dormant commerce clause, pursuant to

which plaintiffs ask the Court to invalidate state statutes

that they believe unfairly discriminate against interstate

commerce.

926 Public Administration Review · September |October 2009

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

state's nondiscriminatory alternatives would prove unworkable, but that Michigan and New Yorks regulations had not satisfied that ex-

acting standard (544 U.S. 460, 490 [2005]). So, the Court declared that if a state chooses to allow direct shipment ofwine, itmust do so on evenhanded terms.

Nonetheless, in a subsequent dormant commerce clause case, the

Court upheld the state's position. In UnitedHaulersAssociation v. Oneida-Herkimer SolidWasteManagementAuthority (2007 U.S. LEXIS 4746), waster haulers challenged two New York counties' flow control ordinances, which required haulers to bring waste to facilities owned and operated by a state-created public benefit

corporation. Two courts of appeals had issued conflicting opinions about whether a flow control ordinance favoring a public entity

facially discriminates against interstate commerce, and the Court took this case to resolve the conflict. In a previous case, the Court had struck down a flow control ordinance that forced haulers to de-

liver waste to a particular private processing facility (511, U.S. 383 [1994]). The issue was whether itmade a difference if the process-

ing facility was a public one. The Court found that itdid. The Court found that the flow control ordinances in this case benefited

a clearly public facility, while treating all private companies exactly the same, and decided that they did not discriminate against inter-

state commerce for purposes of the dormant commerce clause. The

majority opined that laws favoring local government, in contrast

to those favoring in-state businesses over out-of-state competition, may be directed toward any number of legitimate goals unrelated

to protectionism. The Court reasoned that the contrary approach of treating public and private entities the same under the dormant

commerce clause would lead to unprecedented and unbounded interference by the courts in state and local government. The Court

emphasized, "The dormant Commerce Clause is not a roving li-

cense forfederal courts to decide what activities are appropriate for

state and local governments to undertake, and what activities must

be the province of private market competition" (2007 U.S. LEXIS 4746, 22), and, in a warning to all courts to exercise restraint,

"We should be particularly hesitant to interfere with the Counties' effortsunder the guise of the commerce clause because "[w]aste

disposal is both typically and traditionally a local government func-

tion" (2007 U.S. LEXIS 4746, 25; citations omitted). Trie Court instructed the lower courts that itwould uphold nondiscrimina-

tory statutes such as those in this case under the Pike test, "unless

the burden imposed on [interstate] commerce is clearly excessive

in relation to the putative local benefits" (397 U.S. at 142). In this

case, the Court found that after years of discovery, both the mag- istrate judge and the district court could not detect any disparate

impact on out-of-state as opposed to in-state businesses. On the

benefit side of the ledger, the Court found revenue generation for

the counties, a cognizable benefit forpurposes of the Pike test, and increased recycling was also a benefit, and thus concluded that any

arguable burden he ordinances imposed on interstate commerce

does not exceed their public benefits" (2007 U.S. LEXIS 4746, 30). Thus, while the states can expect continued vigilance by the Court when they pass statutes that favor certain in-state private parties, the Court has made itclear that itrespects the ability of the states

to engage in public services and will not allow attacks pursuant to

the dormant commerce clause to infringe on state prerogatives. The traditional government functions language in UnitedHaulersAssoci- ation is particularly heartening to states and is reminiscent of Usery.

Fifth Amendment

Regulation of private property has long been considered to be

largely the province of state and local government. During the past two decades, however, the Supreme Court has allowed challenges in federal courts against state and local regulations alleged to violate the Fifth Amendment's prohibition on the taking of private property without just compensation (Wise 2004). Proponents of state and local prerogatives have been dismayed that the doctrine of regulatory takings- which has allowed challenges to state and local regulations that, in effect,have so restricted the use of a property owner's prop- erty that they have effected a taking of the property- has superim- posed decision making by federal courts over state and local decision

making in an area of long-standing state and local control: land use.

Nonetheless, some decisions since 2000 appear to be more respect- ful of state and local prerogatives.

In Tahoe-Sierra Preservation Council v.Tahoe Regional Phnning Agency (535 U.S. 302 [2002]), the Supreme Court took up the

question ofwhether the Planning Agency's moratorium on all de-

velopment for a period of 32 months while itdeveloped a compre- hensive land-use plan constituted a per se taking of private property

requiring compensation under the takings clause. The landowners had urged the Court to find that the mere enactment of a temporary

regulation that, while in effect,denied a property owner all viable use ofhis or her property gave rise to an unqualified constitutional

obligation to compensate him or her for the value of itsuse during that period (535 U.S. 318 [2002]). The Court refused to enact such a categorical rule and concluded that a better approach "requires careful examination and weighing all the circumstances" (535 U.S. 335 [2002]). The Court did not say that the temporary nature of a land-use restriction precluded finding that iteffects a taking; it simply recognized that itshould not be given exclusive significance one way or the other (535 U.S. 335, 337, [2002]). The Court

concluded, "The interest in facilitating informed decisionmak-

ing by regulatory agencies counsels against adopting a per se rule

that would impose such severe costs on their deliberations" (535 U.S. 335, 339 [2002]). Thus, state and local governments that are

developing comprehensive land use plans and systems of regulation will not be automatically subjected to federal court mandates to pay

compensation to landowners whose development plans are delayed by the planning process.

Another case involving the regulatory takings doctrine focused not

on the regulation of real estate but on the regulation of rents that

oil companies may charge to dealers who lease service stations. In

Lingle v.Chevron (544 U.S. 528 [2005]), the Court dealt with a federal district court ruling based on a previous Supreme Court rul-

ing (Agins v.City ofTiburon, 477 U.S. 255) that had declared that

government regulation of private property effects a taking if itdoes not "substantially advance legitimate state interests" (477 U.S. 255, 260 [1980]). The district court had applied the Agins "substantially advances" formula to strike down a Hawaii statute limiting the rents

that oil companies may charge to dealers who lease service stations

owned by the companies. The district court had found that the

statute did not substantially advance Hawaii s asserted interest in

controlling gasoline prices. The district court concluded that the oil

companies would raise wholesale gasoline prices to offset any rent

reduction required by Hawaii's act, and would refrain from building lessee-dealer stations, thus decreasing their number.

The Federalism Revolution and Its Meaning for Public Administration 927

state's nondiscriminatory alternatives would prove unworkable, but that Michigan and New Yorks regulations had not satisfied that ex-

acting standard (544 U.S. 460, 490 [2005]). So, the Court declared that if a state chooses to allow direct shipment ofwine, itmust do so on evenhanded terms.

Nonetheless, in a subsequent dormant commerce clause case, the

Court upheld the state's position. In UnitedHaulersAssociation v. Oneida-Herkimer SolidWasteManagementAuthority (2007 U.S. LEXIS 4746), waster haulers challenged two New York counties' flow control ordinances, which required haulers to bring waste to facilities owned and operated by a state-created public benefit

corporation. Two courts of appeals had issued conflicting opinions about whether a flow control ordinance favoring a public entity

facially discriminates against interstate commerce, and the Court took this case to resolve the conflict. In a previous case, the Court had struck down a flow control ordinance that forced haulers to de-

liver waste to a particular private processing facility (511, U.S. 383 [1994]). The issue was whether itmade a difference if the process-

ing facility was a public one. The Court found that itdid. The Court found that the flow control ordinances in this case benefited

a clearly public facility, while treating all private companies exactly the same, and decided that they did not discriminate against inter-

state commerce for purposes of the dormant commerce clause. The

majority opined that laws favoring local government, in contrast

to those favoring in-state businesses over out-of-state competition, may be directed toward any number of legitimate goals unrelated

to protectionism. The Court reasoned that the contrary approach of treating public and private entities the same under the dormant

commerce clause would lead to unprecedented and unbounded interference by the courts in state and local government. The Court

emphasized, "The dormant Commerce Clause is not a roving li-

cense forfederal courts to decide what activities are appropriate for

state and local governments to undertake, and what activities must

be the province of private market competition" (2007 U.S. LEXIS 4746, 22), and, in a warning to all courts to exercise restraint,

"We should be particularly hesitant to interfere with the Counties' effortsunder the guise of the commerce clause because "[w]aste

disposal is both typically and traditionally a local government func-

tion" (2007 U.S. LEXIS 4746, 25; citations omitted). Trie Court instructed the lower courts that itwould uphold nondiscrimina-

tory statutes such as those in this case under the Pike test, "unless

the burden imposed on [interstate] commerce is clearly excessive

in relation to the putative local benefits" (397 U.S. at 142). In this

case, the Court found that after years of discovery, both the mag- istrate judge and the district court could not detect any disparate

impact on out-of-state as opposed to in-state businesses. On the

benefit side of the ledger, the Court found revenue generation for

the counties, a cognizable benefit forpurposes of the Pike test, and increased recycling was also a benefit, and thus concluded that any

arguable burden he ordinances imposed on interstate commerce

does not exceed their public benefits" (2007 U.S. LEXIS 4746, 30). Thus, while the states can expect continued vigilance by the Court when they pass statutes that favor certain in-state private parties, the Court has made itclear that itrespects the ability of the states

to engage in public services and will not allow attacks pursuant to

the dormant commerce clause to infringe on state prerogatives. The traditional government functions language in UnitedHaulersAssoci- ation is particularly heartening to states and is reminiscent of Usery.

Fifth Amendment

Regulation of private property has long been considered to be

largely the province of state and local government. During the past two decades, however, the Supreme Court has allowed challenges in federal courts against state and local regulations alleged to violate the Fifth Amendment's prohibition on the taking of private property without just compensation (Wise 2004). Proponents of state and local prerogatives have been dismayed that the doctrine of regulatory takings- which has allowed challenges to state and local regulations that, in effect,have so restricted the use of a property owner's prop- erty that they have effected a taking of the property- has superim- posed decision making by federal courts over state and local decision

making in an area of long-standing state and local control: land use.

Nonetheless, some decisions since 2000 appear to be more respect- ful of state and local prerogatives.

In Tahoe-Sierra Preservation Council v.Tahoe Regional Phnning Agency (535 U.S. 302 [2002]), the Supreme Court took up the

question ofwhether the Planning Agency's moratorium on all de-

velopment for a period of 32 months while itdeveloped a compre- hensive land-use plan constituted a per se taking of private property

requiring compensation under the takings clause. The landowners had urged the Court to find that the mere enactment of a temporary

regulation that, while in effect,denied a property owner all viable use ofhis or her property gave rise to an unqualified constitutional

obligation to compensate him or her for the value of itsuse during that period (535 U.S. 318 [2002]). The Court refused to enact such a categorical rule and concluded that a better approach "requires careful examination and weighing all the circumstances" (535 U.S. 335 [2002]). The Court did not say that the temporary nature of a land-use restriction precluded finding that iteffects a taking; it simply recognized that itshould not be given exclusive significance one way or the other (535 U.S. 335, 337, [2002]). The Court

concluded, "The interest in facilitating informed decisionmak-

ing by regulatory agencies counsels against adopting a per se rule

that would impose such severe costs on their deliberations" (535 U.S. 335, 339 [2002]). Thus, state and local governments that are

developing comprehensive land use plans and systems of regulation will not be automatically subjected to federal court mandates to pay

compensation to landowners whose development plans are delayed by the planning process.

Another case involving the regulatory takings doctrine focused not

on the regulation of real estate but on the regulation of rents that

oil companies may charge to dealers who lease service stations. In

Lingle v.Chevron (544 U.S. 528 [2005]), the Court dealt with a federal district court ruling based on a previous Supreme Court rul-

ing (Agins v.City ofTiburon, 477 U.S. 255) that had declared that

government regulation of private property effects a taking if itdoes not "substantially advance legitimate state interests" (477 U.S. 255, 260 [1980]). The district court had applied the Agins "substantially advances" formula to strike down a Hawaii statute limiting the rents

that oil companies may charge to dealers who lease service stations

owned by the companies. The district court had found that the

statute did not substantially advance Hawaii s asserted interest in

controlling gasoline prices. The district court concluded that the oil

companies would raise wholesale gasoline prices to offset any rent

reduction required by Hawaii's act, and would refrain from building lessee-dealer stations, thus decreasing their number.

The Federalism Revolution and Its Meaning for Public Administration 927

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

field" (545 U.S. 469, 480), and "Our earliest cases in particular em-

bodied a strong theme of federalism, emphasizing the 'great respect' that we owe to state legislatures and state courts in discerning local

public needs" (545 U.S. 469, 482). The Court opined that the city had invoked a state statute specifically authorizing the use of emi-

nent domain to promote economic development, and that because the plan unquestionably served a public purpose, the takings chal-

lenged by the landowners satisfied the public use requirement of the

Fifth Amendment (545 U.S. 469, 484). The landowners had asked

the Court to declare that economic development did not qualify as

a public use because itblurred the boundary between public and

private takings. The Court observed that the public end may be

served as well or better through an agency of private enterprise, and the Court could not say that public ownership is the sole method

of promoting the public purposes of community projects (545 U.S. 469, 486). Quoting an earlier decision, the Court emphasized, "When the legislature spurpose is legitimate and itsmeans are

not irrational, our cases make clear that empirical debates over the

wisdom of takings- no less than debates over the wisdom of other

kinds of socioeconomic legislation- are not to be carried out in the

federal courts" (545 U.S. 469, 487; citations omitted). The Court

made itclear that lower courts are not to engage in scrutiny of the

details of such plans and regulations or the inclusion of particular properties:

Just as we decline to second-guess the City's considered

judgment about the efficacy of itsdevelopment plan, we also

decline to second-guess the City's determinations as to what

lands itneeds to acquire in order to effectuate the project. 'It

is not forthe courts to oversee the choice of the boundary line

nor to sit in review on the size of the particular project area.

Once the question of the public purpose has been decided, the amount and character of the land to be taken forthe project and the need fora particular tract to complete the

integrated plan rests in the discretion of the legislative branch.

(545 U.S. 469, 489; citations omitted)

Fourteenth Amendment The Court has also shaped the federalism balance by scrutinizing state action under the Fourteenth Amendment. Wise observed that

the early Rehnquist Court was no exception in using the "various Fourteenth Amendment provisions to scrutinize state actions. The Court does not shy away from using itsown authority to invalidate state actions, even when the states believe they have the approval of

Congress forsuch actions" (2001, 351).

In Lawrence v.Texas (539 U.S. 558), the Court took the opportu- nity to clarify itsjurisprudence in this regard. The Court considered whether a Texas law criminalizing acts of same-sex intimacy violated Fourteenth Amendment equal protection and due process guaran- tees. Previously, a 5-4 Court had ruled in Bowers v.Hardwick (478 U.S. 186 [1986]) that the Constitution does not guarantee a right to

engage in acts of sodomy, thus allowing states the latitude to govern the issue. The 6-3 Lawrence Court overturned itsdecision in Bowers.

The Court focused on the due process claims, stating that "[e] quality of treatment and the due process right to demand respect forcon- duct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests" (539 U.S. 558, 575). The Court concluded that the

The Supreme Court reviewed itsprior precedents and found that in

most cases, the method forfinding an unconstitutional regulatory taking involved determining whether a regulation had significantly burdened property rights. The Court observed that the lower courts, in solely applying the Agins "substantially advances" test, did not as-

sess whether any burden had been placed on the oil companies. The Court observed that an ineffective regulation may not significantly burden property rights at all, and itmay distribute burdens broadly and evenly among property owners (544 U.S. 528, 543).

Thus, the Court observed that instead of addressing a challenged regulation's effecton private property, the "substantially advances"

inquiry probes the regulation's underlying validity. The Court

pointed out that Chevron asserted, and the district court found, that Chevron would recoup any reductions in itsrental income by

raising wholesale prices. Thus, the Court concluded that Chevron had not clearly even argued- let alone established- that ithad been singled out to bear any severe regulatory burden. The Court also concluded that the "substantially advances" formula used alone would present serious practical difficulties. It could be read to

demand heightened means-ends review of virtually any regulation of

private property, and if so interpreted, would require courts to scru-

tinize the efficacy ofvast array of state and federal regulations- "a task forwhich courts are not well suited." "Moreover" the Court

concluded, "it would empower- and might often require- courts

to substitute their predictive judgments forthose of elected legis- latures and expert agencies" (544 U.S. 528, 543). Therefore, the Court declared that the "substantially advances" formula is not a valid method of identifying regulatory takings forwhich the Fifth

Amendment requires just compensation (544 U.S. 528, 545).

This declaration that plaintiffs cannot use the "substantially ad- vances" formula standing alone to challenge state regulations means that the Court has closed the door on the many challenges to state

regulations that would have surely followed if Chevron had pre- vailed in the case. The Court's clearly expressed concern that federal

courts would have been increasingly placed in the position of second

guessing state legislatures and administrative agencies over the

predicted effectiveness of regulations demonstrates a much-needed

respect forstate control of their regulatory functions.

Another Fifth Amendment case did not involve the regulatory tak-

ings doctrine, but rather the definition of "public use." The Fifth

Amendment states, "[N]or shall private property be taken for public use, without just compensation." In Kelo v.City ofNew London (545 U.S. 469 [2005]), the city ofNew London approved a development plan to revitalize the downtown and waterfront areas. In assembling the land needed forthe project, the city's development agent pur- chased property from willing sellers and proposed to use the power of eminent domain to acquire the remainder of the property from

unwilling owners in exchange forjust compensation. Nine property owners who did not want to sell challenged the condemnation pro- ceeding, claiming that the taking of their properties would violate the "public use" restriction in the Fifth Amendment. After reviewing itsdecisions in previous cases, the Court stated that the disposition of this case turned on the question ofwhether the city's develop- ment plan served a "public purpose." The Court observed, "Without

exception, our cases have defined the concept broadly, reflecting our longstanding policy of deference to legislative judgments in the

928 Public Administration Review · September! October 2009

field" (545 U.S. 469, 480), and "Our earliest cases in particular em-

bodied a strong theme of federalism, emphasizing the 'great respect' that we owe to state legislatures and state courts in discerning local

public needs" (545 U.S. 469, 482). The Court opined that the city had invoked a state statute specifically authorizing the use of emi-

nent domain to promote economic development, and that because the plan unquestionably served a public purpose, the takings chal-

lenged by the landowners satisfied the public use requirement of the

Fifth Amendment (545 U.S. 469, 484). The landowners had asked

the Court to declare that economic development did not qualify as

a public use because itblurred the boundary between public and

private takings. The Court observed that the public end may be

served as well or better through an agency of private enterprise, and the Court could not say that public ownership is the sole method

of promoting the public purposes of community projects (545 U.S. 469, 486). Quoting an earlier decision, the Court emphasized, "When the legislature spurpose is legitimate and itsmeans are

not irrational, our cases make clear that empirical debates over the

wisdom of takings- no less than debates over the wisdom of other

kinds of socioeconomic legislation- are not to be carried out in the

federal courts" (545 U.S. 469, 487; citations omitted). The Court

made itclear that lower courts are not to engage in scrutiny of the

details of such plans and regulations or the inclusion of particular properties:

Just as we decline to second-guess the City's considered

judgment about the efficacy of itsdevelopment plan, we also

decline to second-guess the City's determinations as to what

lands itneeds to acquire in order to effectuate the project. 'It

is not forthe courts to oversee the choice of the boundary line

nor to sit in review on the size of the particular project area.

Once the question of the public purpose has been decided, the amount and character of the land to be taken forthe project and the need fora particular tract to complete the

integrated plan rests in the discretion of the legislative branch.

(545 U.S. 469, 489; citations omitted)

Fourteenth Amendment The Court has also shaped the federalism balance by scrutinizing state action under the Fourteenth Amendment. Wise observed that

the early Rehnquist Court was no exception in using the "various Fourteenth Amendment provisions to scrutinize state actions. The Court does not shy away from using itsown authority to invalidate state actions, even when the states believe they have the approval of

Congress forsuch actions" (2001, 351).

In Lawrence v.Texas (539 U.S. 558), the Court took the opportu- nity to clarify itsjurisprudence in this regard. The Court considered whether a Texas law criminalizing acts of same-sex intimacy violated Fourteenth Amendment equal protection and due process guaran- tees. Previously, a 5-4 Court had ruled in Bowers v.Hardwick (478 U.S. 186 [1986]) that the Constitution does not guarantee a right to

engage in acts of sodomy, thus allowing states the latitude to govern the issue. The 6-3 Lawrence Court overturned itsdecision in Bowers.

The Court focused on the due process claims, stating that "[e] quality of treatment and the due process right to demand respect forcon- duct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests" (539 U.S. 558, 575). The Court concluded that the

The Supreme Court reviewed itsprior precedents and found that in

most cases, the method forfinding an unconstitutional regulatory taking involved determining whether a regulation had significantly burdened property rights. The Court observed that the lower courts, in solely applying the Agins "substantially advances" test, did not as-

sess whether any burden had been placed on the oil companies. The Court observed that an ineffective regulation may not significantly burden property rights at all, and itmay distribute burdens broadly and evenly among property owners (544 U.S. 528, 543).

Thus, the Court observed that instead of addressing a challenged regulation's effecton private property, the "substantially advances"

inquiry probes the regulation's underlying validity. The Court

pointed out that Chevron asserted, and the district court found, that Chevron would recoup any reductions in itsrental income by

raising wholesale prices. Thus, the Court concluded that Chevron had not clearly even argued- let alone established- that ithad been singled out to bear any severe regulatory burden. The Court also concluded that the "substantially advances" formula used alone would present serious practical difficulties. It could be read to

demand heightened means-ends review of virtually any regulation of

private property, and if so interpreted, would require courts to scru-

tinize the efficacy ofvast array of state and federal regulations- "a task forwhich courts are not well suited." "Moreover" the Court

concluded, "it would empower- and might often require- courts

to substitute their predictive judgments forthose of elected legis- latures and expert agencies" (544 U.S. 528, 543). Therefore, the Court declared that the "substantially advances" formula is not a valid method of identifying regulatory takings forwhich the Fifth

Amendment requires just compensation (544 U.S. 528, 545).

This declaration that plaintiffs cannot use the "substantially ad- vances" formula standing alone to challenge state regulations means that the Court has closed the door on the many challenges to state

regulations that would have surely followed if Chevron had pre- vailed in the case. The Court's clearly expressed concern that federal

courts would have been increasingly placed in the position of second

guessing state legislatures and administrative agencies over the

predicted effectiveness of regulations demonstrates a much-needed

respect forstate control of their regulatory functions.

Another Fifth Amendment case did not involve the regulatory tak-

ings doctrine, but rather the definition of "public use." The Fifth

Amendment states, "[N]or shall private property be taken for public use, without just compensation." In Kelo v.City ofNew London (545 U.S. 469 [2005]), the city ofNew London approved a development plan to revitalize the downtown and waterfront areas. In assembling the land needed forthe project, the city's development agent pur- chased property from willing sellers and proposed to use the power of eminent domain to acquire the remainder of the property from

unwilling owners in exchange forjust compensation. Nine property owners who did not want to sell challenged the condemnation pro- ceeding, claiming that the taking of their properties would violate the "public use" restriction in the Fifth Amendment. After reviewing itsdecisions in previous cases, the Court stated that the disposition of this case turned on the question ofwhether the city's develop- ment plan served a "public purpose." The Court observed, "Without

exception, our cases have defined the concept broadly, reflecting our longstanding policy of deference to legislative judgments in the

928 Public Administration Review · September! October 2009

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

reasoning and support ofBowers had eroded, as fewer and fewer states

and nations enforced their antisodomy laws. The Court reinforced an observation from an earlier case that "'[i]t is a promise of the Consti- tution that there isa realm ofpersonal liberty which the government

may not enter/ The Texas statute furthers no legitimate state interest

which can justify itsintrusion into the personal and private life of the

individual" (539 U.S. 558, 578; citations omitted). The dissent criti-

cized the Court forfailing to explicitly declare sodomy a fundamental

right,and further failing by subjecting Texas s legislative interests

to the strictscrutiny warranted if sodomy were explicitly declared a fundamental right. Notwithstanding, the Lawrence case illustrates a

Supreme Court that may be moving toward federalism jurisprudence that isless deferential to the scope of state powers.

Gauging the Federalism Balance: Implications for Public Managers Our analysis underscores several important conclusions about the

life and death of federalism. First, evisceration of all past nonfederal

regulatory enactments has not been the vision of the Court or the

result of itsdecisions. Neither the worst fears nor the fondest hopes of federalism's revolutionaries and anti-revolutions were realized. We

observed, instead, yet another cycle in the ebb and flow of federal-

ism jurisprudence.

Our conclusions, however, are more nuanced than sweeping historical observation. To understand the contours of federalism and its effects,we have argued and demonstrated a more detailed federalism analysis. We observe

that much of the extant discussion about whether federalism is alive or dead is focused

primarily on congressional power. Because federalism involves all three branches of gov- ernment (e.g., congressional, executive, and

judicial directives to states), gauging the fed-

eralism balance would be incomplete if done

by focusing on legislative behavior alone. In

our preceding analysis of judicial opinions, we

have endeavored to underscore the interaction

of the three branches across constitutional

and statutory issues (see, e.g., FederalMari- time Commission v.South Carolina State Ports

Authority (535 U.S. 743 [2002]).

Similarly, declaring a federalism revolution requires more than

considering commerce clause jurisprudence. We have demonstrated

that the federalism balance is also shaped by spending clause, Fifth,

Tenth, Eleventh, and Fourteenth amendment issues. We summarize

here the jurisprudence in each area in an effortto gauge a federal-

ism balance that not only reflects commerce clause jurisprudence, but also these other important areas. By unpacking federalism in

this way, we also underscore specific implications touching public administration (e.g., the status of takings regulations under the Fifth

Amendment). To underscore the relevance of this exercise for public administrators, we have organized our analyses into two parts: juris-

prudence as itaffects national and state administrative powers.

With respect to the commerce clause, the Court will continue to

scrutinize statutes to determine whether Congress has a rational

basis fordeciding whether covered activities, even noneconomic ones, threaten a regulatory scheme that governs a set of economic activities in interstate commerce. It will not require documented

empirical findings that every included activity is essential to the

regulatory scheme. This last point would seem to allay the fears of some congressional supporters that the Court would second-guess Congress's fact-finding methods concerning every activity included in legislation, and thus provide Congress with more leeway in estab-

lishing the basis for legislation (and less ammunition forthose who believe Congress has overreached itsauthority under the commerce

clause).

The Court, however, will not allow parties wishing to challenge state actions to "read in '

congressional intent where Congress itself

has not spoken on the issue legislatively. Nonetheless, the Court maintains that itwill continue to play itsrole in being the judge of whether Congress has acted rationally in including an activity as

being essential to regulating an area of interstate commerce. As such, the Court s posture cannot be said to be a return to what itwas under Garcia and a return to the Constitution in exile, but we will

have to wait to see whether any subsequent congressional statutes fail to meet the Court s clarified standard.

Fifth Amendment jurisprudence has been another important influ-

ence shaping federalism, and itis a particu- larly good example of the waxing and waning of federalism in a particular policy area.

Traditionally, courts deferred to state and local administrators in matters of private property

takings actions. However, Supreme Court

jurisprudence during the 1980s and 1990s

increasingly entertained takings challenges in

federal courts against state and local admin- istration. Since 2000, the Court seems to be

marking another shift as the tenor of federal- ism respecting takings seems, once again, more deferential to the administrations of state and local authorities. Of particular note

is the Court s departure from sole use of the

"substantially advances" formula to challenge takings regulations.

The Fourteenth Amendment has informed the

federalism balance in several important ways as well. In recent cases

concerning the scope of federal powers, the Court upheld Congress's

statutory provisions (FMLA and ADA). This seems to indicate

expanded judicial deference in this area to Congress's scope of power under section 5 of the Fourteenth Amendment. In examining the

scope of state powers under the Fourteenth Amendment, the Court, in the Lawrence cases, seems to indicate a contraction of deference

to state powers when itcomes to the equal protection clause of the

Fourteenth Amendment.

Tlie Court's post-revolution federalism jurisprudence dealing with

the spending clause primarily engaged the firsttwo points under the

analysis articulated in Dole: (1) that congressional spending clause

authority must be exercised forthe "general welfare" of the public, and (2) that Congress may condition federal funds on particular state behaviors if done unambiguously. Taken together, the relevant

We observe that much of the extant discussion about whether federalism is alive or

dead is focused primarily on

congressional power. Because federalism involves all three

branches of government (e.g., congressional, executive, and

judicial directives to states),

gauging the federalism balance would be incomplete if done by

focusing on legislative behavior alone.

The Federalism Revolution and Its Meaning for Public Administration 929

reasoning and support ofBowers had eroded, as fewer and fewer states

and nations enforced their antisodomy laws. The Court reinforced an observation from an earlier case that "'[i]t is a promise of the Consti- tution that there isa realm ofpersonal liberty which the government

may not enter/ The Texas statute furthers no legitimate state interest

which can justify itsintrusion into the personal and private life of the

individual" (539 U.S. 558, 578; citations omitted). The dissent criti-

cized the Court forfailing to explicitly declare sodomy a fundamental

right,and further failing by subjecting Texas s legislative interests

to the strictscrutiny warranted if sodomy were explicitly declared a fundamental right. Notwithstanding, the Lawrence case illustrates a

Supreme Court that may be moving toward federalism jurisprudence that isless deferential to the scope of state powers.

Gauging the Federalism Balance: Implications for Public Managers Our analysis underscores several important conclusions about the

life and death of federalism. First, evisceration of all past nonfederal

regulatory enactments has not been the vision of the Court or the

result of itsdecisions. Neither the worst fears nor the fondest hopes of federalism's revolutionaries and anti-revolutions were realized. We

observed, instead, yet another cycle in the ebb and flow of federal-

ism jurisprudence.

Our conclusions, however, are more nuanced than sweeping historical observation. To understand the contours of federalism and its effects,we have argued and demonstrated a more detailed federalism analysis. We observe

that much of the extant discussion about whether federalism is alive or dead is focused

primarily on congressional power. Because federalism involves all three branches of gov- ernment (e.g., congressional, executive, and

judicial directives to states), gauging the fed-

eralism balance would be incomplete if done

by focusing on legislative behavior alone. In

our preceding analysis of judicial opinions, we

have endeavored to underscore the interaction

of the three branches across constitutional

and statutory issues (see, e.g., FederalMari- time Commission v.South Carolina State Ports

Authority (535 U.S. 743 [2002]).

Similarly, declaring a federalism revolution requires more than

considering commerce clause jurisprudence. We have demonstrated

that the federalism balance is also shaped by spending clause, Fifth,

Tenth, Eleventh, and Fourteenth amendment issues. We summarize

here the jurisprudence in each area in an effortto gauge a federal-

ism balance that not only reflects commerce clause jurisprudence, but also these other important areas. By unpacking federalism in

this way, we also underscore specific implications touching public administration (e.g., the status of takings regulations under the Fifth

Amendment). To underscore the relevance of this exercise for public administrators, we have organized our analyses into two parts: juris-

prudence as itaffects national and state administrative powers.

With respect to the commerce clause, the Court will continue to

scrutinize statutes to determine whether Congress has a rational

basis fordeciding whether covered activities, even noneconomic ones, threaten a regulatory scheme that governs a set of economic activities in interstate commerce. It will not require documented

empirical findings that every included activity is essential to the

regulatory scheme. This last point would seem to allay the fears of some congressional supporters that the Court would second-guess Congress's fact-finding methods concerning every activity included in legislation, and thus provide Congress with more leeway in estab-

lishing the basis for legislation (and less ammunition forthose who believe Congress has overreached itsauthority under the commerce

clause).

The Court, however, will not allow parties wishing to challenge state actions to "read in '

congressional intent where Congress itself

has not spoken on the issue legislatively. Nonetheless, the Court maintains that itwill continue to play itsrole in being the judge of whether Congress has acted rationally in including an activity as

being essential to regulating an area of interstate commerce. As such, the Court s posture cannot be said to be a return to what itwas under Garcia and a return to the Constitution in exile, but we will

have to wait to see whether any subsequent congressional statutes fail to meet the Court s clarified standard.

Fifth Amendment jurisprudence has been another important influ-

ence shaping federalism, and itis a particu- larly good example of the waxing and waning of federalism in a particular policy area.

Traditionally, courts deferred to state and local administrators in matters of private property

takings actions. However, Supreme Court

jurisprudence during the 1980s and 1990s

increasingly entertained takings challenges in

federal courts against state and local admin- istration. Since 2000, the Court seems to be

marking another shift as the tenor of federal- ism respecting takings seems, once again, more deferential to the administrations of state and local authorities. Of particular note

is the Court s departure from sole use of the

"substantially advances" formula to challenge takings regulations.

The Fourteenth Amendment has informed the

federalism balance in several important ways as well. In recent cases

concerning the scope of federal powers, the Court upheld Congress's

statutory provisions (FMLA and ADA). This seems to indicate

expanded judicial deference in this area to Congress's scope of power under section 5 of the Fourteenth Amendment. In examining the

scope of state powers under the Fourteenth Amendment, the Court, in the Lawrence cases, seems to indicate a contraction of deference

to state powers when itcomes to the equal protection clause of the

Fourteenth Amendment.

Tlie Court's post-revolution federalism jurisprudence dealing with

the spending clause primarily engaged the firsttwo points under the

analysis articulated in Dole: (1) that congressional spending clause

authority must be exercised forthe "general welfare" of the public, and (2) that Congress may condition federal funds on particular state behaviors if done unambiguously. Taken together, the relevant

We observe that much of the extant discussion about whether federalism is alive or

dead is focused primarily on

congressional power. Because federalism involves all three

branches of government (e.g., congressional, executive, and

judicial directives to states),

gauging the federalism balance would be incomplete if done by

focusing on legislative behavior alone.

The Federalism Revolution and Its Meaning for Public Administration 929

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

cases heard by the U.S. Supreme Court on these points indicate a continued deference to Congress's spending clause authority, with some relatively recent exceptions. Justice Alito's opinion in Arlington v.Murphy (2006) suggests that the Court might be withdrawing an

expansive deference to Congress's spending clause authority, when under Doles second requirement, federal legislation predicated on

spending clause authority does not fairly or clearly give notice of

obligations to states. For administrators at the state level, the Court has guided Congress to leave nothing inferred as it makes particular

requirements of states. This places a restraint on plaintiffs who may be tempted to ask the courts to "read in" requirements on states.

Schaffer ν.Weast (546 U.S. 49 [2005]) sent a similar message when the Court ruled that Congress's legislative silence on who bears the

burden of proof in IDEA disputes left no alternative but to put the

burden on plaintiffs- not on public administrators.

In conclusion, we find support for our earlier proposition that using "revolution" to conceptualize the recent the line of the Court's feder-

alism is less accurate than the concept of a "continued conversation." Neither pre- nor post-Raich jurisprudence supports the extreme

prescriptions for federalism that Raich's advocates or antagonists have offered. A systematic analysis of recent federalism cases that

considers multiple branches (i.e., more than Congress) and areas of federalism jurisprudence (i.e., more than commerce clause) provides public administrators with a clearer, if not more complex, under-

standing of the dynamics in our federal system that shape a public administrator's ability to achieve policy priorities.

For public administrators, this analysis guides the continued need to stay abreast federalism developments. In part, intergovernmen- tal coordination depends on understanding the development of

Congress's commerce clause powers, but this understanding alone is

myopic. The effective administrator's federalism calculus must also

inspect the constraining and enabling powers found under judi- cial interpretations of the Fifth, Tenth, Eleventh, and Fourteenth amendments. We have detailed the most important of these inter-

pretations here for the last decade, but, more importantly, have also

provided public administration with a framework to guide federal-

ism's continued conversation.

Notes 1. See, for example, Gibbons v.Ogden, 22 U.S. (9 Wheat.) 1 (1824),

in which the Court upheld Congress's ability to regulate commerce-

related activities such as navigation. 2. In a series of cases, the Court refused to extend the reach of the

Congress's commerce power to production, manufacturing, or

mining (Thomas andTatelman 2005, 6). See, respectively, Hoke v.

United States, 227 U.S. 308 (1913); United States v.E. C Knight Co.,

156 U.S. 1, 12 (1895); and Carter v.Carter Coal Co., 298 U.S. 238, 304 (1936).

3. For example, the 5-4 decision in National League ofCities v. Usery (426 U.S. 833 [1976]) suggests that in areas that in regulatory areas

such as state labor markets, federal laws- although applicable-

should not "directly displace the States' freedom to structure integral

operations in areas of traditional governmental functions." This

case was later overturned by Garcia v.San Antonia Metro. Transit

Authority (469 U.S. 528 [1985]). 4. The Twenty-First Amendment provides, "The transportation or

importation into any State, Territory, or possession of the United

States for delivery or use therein of intoxicating liquors, in violation

of the laws thereof, is hereby prohibited."

References Anton, Thomas J. 1989. American Federalism and Public Policy: How the

System Works. New York: Random House.

Baker, Lynn Α., and Ernest A. Young. 2001. Federalism and the Double

Standard ofJudicial Review. Duke LawJournal 51(1): 75-164.

Barnett, Randy E. 2005. Paper Symposium: Federalism after Gonzales ν.

Raich: Foreword: Limiting Raich. Lewis and Clark Law Review 9(4):

743-50.

Calabresi, Steven G. 2001. Federalism and the Rehnquist Court: A

Normative Defense. AnnaL· oftheAmerican Academy ofPolitical and

Social Science 574: 24-36.

Chemerinsky, Erwin. 2006. The Assumptions of Federalism. Stanford

Law Review 58(6): 1763-91.

Coleman, Christina E. 2006. Note: The Future of the Federalism

Revolution: Gonzales v.Raich and the Legacy of the Rehnquist

Court. Loyola University ofChicago LawJournal 37: 803-64.

Cooper, Charles. 1988. The Demise of Federalism. Urban Lawyer 20(2):

239-83.

Dinan, John J. 1998. The Supreme Court Confronts Federalism: The

Distinctiveness of the Rehnquist Court's Federalism Decisions. Paper

presented at the Annual Meeting of the American Political Science

Association, September 3-6, Boston.

. 2004. Strengthening the Political Safeguards of Federalism: The

Fate ofRecent Federalism Legislation in the U.S. Congress. Publius

34(3): 55-84.

Greve, Michael S. 1999. Real Federalism: Why ItMatters, How It Could

Happen. Washington, DC: ΑΕΙ Press.

Lazarus, Simon. 2006. Federalism R.I.E? Did the Roberts Hearings Junk the

Rehnquist Courts Federalism Revolution? DePaulLaw Review 56: 1-54.

Magill, Elizabeth. 2004. The Revolution That Wasn't. Northwestern

University Law Review 99(1): 47-76.

McGinnis, John O. 2002. Reviving Tocqueville's America: The Rehnquist

Court s Jurisprudence of Social Discovery. California Law Review

90(2): 485-571.

Milakovich, Michael E., and George J. Gordon. 2007. Public

Administration in America. 9th ed. Belmont, CA: Thomson/

Wadsworth.

Noonan, John Thomas. 2002. Narrowing the Nations Power: The Supreme

Court Sides with the States. Berkeley: University of California Press.

Ponnuru, Ramesh. 2005. The End of the Federalism Revolution.

National Review, July 4, 33-35.

Rosenbloom, David H., and Robert Kravchuck. 2005. Public

Administration: UnderstandingManagement, Politics, and Law in the

Public Sector. 6th ed. Boston: McGraw-Hill.

Rosenbloom, David H., and Bernard H. Ross. 1998. Toward a New

Jurisprudence of Constitutional Federalism. American Review of PublicAdministration 28(2): 107-25.

Starling, Grover. 2007. Managing the Public Sector. 8th ed. Belmont, CA:

Thomson Higher Learning.

Thomas, Kenneth R., and Todd B. Tatelman. 2005. The Power to

Regulate Commerce: Limits on Congressional Power. Washington, DC:

Congressional Research Service.

Turley, Jonathan. 2005. A Right Turn on the High Court? USA Today,

June 27.

Van Alstyne, William. 1985. The Second Death of Federalism. Michigan Law Review 83(7): 1709-33.

930 Public Administration Review · September |October 2009

cases heard by the U.S. Supreme Court on these points indicate a continued deference to Congress's spending clause authority, with some relatively recent exceptions. Justice Alito's opinion in Arlington v.Murphy (2006) suggests that the Court might be withdrawing an

expansive deference to Congress's spending clause authority, when under Doles second requirement, federal legislation predicated on

spending clause authority does not fairly or clearly give notice of

obligations to states. For administrators at the state level, the Court has guided Congress to leave nothing inferred as it makes particular

requirements of states. This places a restraint on plaintiffs who may be tempted to ask the courts to "read in" requirements on states.

Schaffer ν.Weast (546 U.S. 49 [2005]) sent a similar message when the Court ruled that Congress's legislative silence on who bears the

burden of proof in IDEA disputes left no alternative but to put the

burden on plaintiffs- not on public administrators.

In conclusion, we find support for our earlier proposition that using "revolution" to conceptualize the recent the line of the Court's feder-

alism is less accurate than the concept of a "continued conversation." Neither pre- nor post-Raich jurisprudence supports the extreme

prescriptions for federalism that Raich's advocates or antagonists have offered. A systematic analysis of recent federalism cases that

considers multiple branches (i.e., more than Congress) and areas of federalism jurisprudence (i.e., more than commerce clause) provides public administrators with a clearer, if not more complex, under-

standing of the dynamics in our federal system that shape a public administrator's ability to achieve policy priorities.

For public administrators, this analysis guides the continued need to stay abreast federalism developments. In part, intergovernmen- tal coordination depends on understanding the development of

Congress's commerce clause powers, but this understanding alone is

myopic. The effective administrator's federalism calculus must also

inspect the constraining and enabling powers found under judi- cial interpretations of the Fifth, Tenth, Eleventh, and Fourteenth amendments. We have detailed the most important of these inter-

pretations here for the last decade, but, more importantly, have also

provided public administration with a framework to guide federal-

ism's continued conversation.

Notes 1. See, for example, Gibbons v.Ogden, 22 U.S. (9 Wheat.) 1 (1824),

in which the Court upheld Congress's ability to regulate commerce-

related activities such as navigation. 2. In a series of cases, the Court refused to extend the reach of the

Congress's commerce power to production, manufacturing, or

mining (Thomas andTatelman 2005, 6). See, respectively, Hoke v.

United States, 227 U.S. 308 (1913); United States v.E. C Knight Co.,

156 U.S. 1, 12 (1895); and Carter v.Carter Coal Co., 298 U.S. 238, 304 (1936).

3. For example, the 5-4 decision in National League ofCities v. Usery (426 U.S. 833 [1976]) suggests that in areas that in regulatory areas

such as state labor markets, federal laws- although applicable-

should not "directly displace the States' freedom to structure integral

operations in areas of traditional governmental functions." This

case was later overturned by Garcia v.San Antonia Metro. Transit

Authority (469 U.S. 528 [1985]). 4. The Twenty-First Amendment provides, "The transportation or

importation into any State, Territory, or possession of the United

States for delivery or use therein of intoxicating liquors, in violation

of the laws thereof, is hereby prohibited."

References Anton, Thomas J. 1989. American Federalism and Public Policy: How the

System Works. New York: Random House.

Baker, Lynn Α., and Ernest A. Young. 2001. Federalism and the Double

Standard ofJudicial Review. Duke LawJournal 51(1): 75-164.

Barnett, Randy E. 2005. Paper Symposium: Federalism after Gonzales ν.

Raich: Foreword: Limiting Raich. Lewis and Clark Law Review 9(4):

743-50.

Calabresi, Steven G. 2001. Federalism and the Rehnquist Court: A

Normative Defense. AnnaL· oftheAmerican Academy ofPolitical and

Social Science 574: 24-36.

Chemerinsky, Erwin. 2006. The Assumptions of Federalism. Stanford

Law Review 58(6): 1763-91.

Coleman, Christina E. 2006. Note: The Future of the Federalism

Revolution: Gonzales v.Raich and the Legacy of the Rehnquist

Court. Loyola University ofChicago LawJournal 37: 803-64.

Cooper, Charles. 1988. The Demise of Federalism. Urban Lawyer 20(2):

239-83.

Dinan, John J. 1998. The Supreme Court Confronts Federalism: The

Distinctiveness of the Rehnquist Court's Federalism Decisions. Paper

presented at the Annual Meeting of the American Political Science

Association, September 3-6, Boston.

. 2004. Strengthening the Political Safeguards of Federalism: The

Fate ofRecent Federalism Legislation in the U.S. Congress. Publius

34(3): 55-84.

Greve, Michael S. 1999. Real Federalism: Why ItMatters, How It Could

Happen. Washington, DC: ΑΕΙ Press.

Lazarus, Simon. 2006. Federalism R.I.E? Did the Roberts Hearings Junk the

Rehnquist Courts Federalism Revolution? DePaulLaw Review 56: 1-54.

Magill, Elizabeth. 2004. The Revolution That Wasn't. Northwestern

University Law Review 99(1): 47-76.

McGinnis, John O. 2002. Reviving Tocqueville's America: The Rehnquist

Court s Jurisprudence of Social Discovery. California Law Review

90(2): 485-571.

Milakovich, Michael E., and George J. Gordon. 2007. Public

Administration in America. 9th ed. Belmont, CA: Thomson/

Wadsworth.

Noonan, John Thomas. 2002. Narrowing the Nations Power: The Supreme

Court Sides with the States. Berkeley: University of California Press.

Ponnuru, Ramesh. 2005. The End of the Federalism Revolution.

National Review, July 4, 33-35.

Rosenbloom, David H., and Robert Kravchuck. 2005. Public

Administration: UnderstandingManagement, Politics, and Law in the

Public Sector. 6th ed. Boston: McGraw-Hill.

Rosenbloom, David H., and Bernard H. Ross. 1998. Toward a New

Jurisprudence of Constitutional Federalism. American Review of PublicAdministration 28(2): 107-25.

Starling, Grover. 2007. Managing the Public Sector. 8th ed. Belmont, CA:

Thomson Higher Learning.

Thomas, Kenneth R., and Todd B. Tatelman. 2005. The Power to

Regulate Commerce: Limits on Congressional Power. Washington, DC:

Congressional Research Service.

Turley, Jonathan. 2005. A Right Turn on the High Court? USA Today,

June 27.

Van Alstyne, William. 1985. The Second Death of Federalism. Michigan Law Review 83(7): 1709-33.

930 Public Administration Review · September |October 2009

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms

Wall StreetJournal. 1999. The Federalism Revolution. June 25.

Wise, Charles. 1998. Judicial Federalism: The Resurgence of the Supreme Court's Role in the Protection of State Sovereignty. Public Administration Review 58(2): 95-98.

. 2001. The Supreme Court's New Constitutional Federalism: Implications forPublic Administration. Public Administration Review 61(3): 343-58.

. 2004. Property Rights and Regulatory Takings. In Environmental Governance Reconsidered: Challenges, Choices, and Opportunities, edited by Robert F.

Durant, Daniel J.Fiorino, and Rosemary O'Leary, 289-321. Cambridge, MA: MIT Press.

Wise, Charles R., and Robert K. Christensen. 2005. A Full and Fair Capacity: Federal Courts Managing State Policy Programs. Administration and Society 38(5): 576-610.

Yoo, John C. 1998. Judicial Review and Federalism. HarvardJournal ofLaw and Public Policy 22(1): 197-203.

The Federalism Revolution and Its Meaning for Public Administration 931

DID YOU KNOW? Your ASPA Membership gives you free access to The Foundations of Public Administration Series"

The Foundations ofPublicAdministration Series isa collection of articles to be written by experts in

20 content areas who will provide introductory essays and the top recommended articles forthose subjects, both from PAR and other sources. As each content area becomes available, this web page will provide access to the article, to a list of references, and to a related syllabus.

All of the articles in PAR are available freeforASPA members. To download specific articles, just visit PAR Online by clicking on the link in the top banner of the PAR home page, or after logging in to the ASPA site at www.aspanet.org, click in the PAR/PA TIMES link on the top banner. Just scroll down to the two links below:

• Access PAR Issues from 1940-1999 (JSTOR) • Access PAR Issues from 2000-present

Each link will take you to a searchable database where you can find specific articles published in PAR

referenced by authors of the Series.

CONTENT AREAS:

NowAvaihble:

■ Human Resource Management ■ Public Administration History ■ Managing the Federal Executive Branch ■ Ethics in the Public Service ■ American Federalism, Intergovernmental Relations and Intergovernmental Management ■ Administrative Behavior and Organization

Coming Soon:

■ Administrative Communications ■ Administration Law ■ Administration Reorganization and Reform

■ Citizen Participation in Public Administration ■ Collaborative Management ■ Comparative Public Administration ■ Governance ■ Managing Urban America ■ Non-Profit Management ■ Public Administration Methodology ■ Public Budgeting and Finance ■ Public Service Leadership ■ Theory and Scope of Public Administration

Wall StreetJournal. 1999. The Federalism Revolution. June 25.

Wise, Charles. 1998. Judicial Federalism: The Resurgence of the Supreme Court's Role in the Protection of State Sovereignty. Public Administration Review 58(2): 95-98.

. 2001. The Supreme Court's New Constitutional Federalism: Implications forPublic Administration. Public Administration Review 61(3): 343-58.

. 2004. Property Rights and Regulatory Takings. In Environmental Governance Reconsidered: Challenges, Choices, and Opportunities, edited by Robert F.

Durant, Daniel J.Fiorino, and Rosemary O'Leary, 289-321. Cambridge, MA: MIT Press.

Wise, Charles R., and Robert K. Christensen. 2005. A Full and Fair Capacity: Federal Courts Managing State Policy Programs. Administration and Society 38(5): 576-610.

Yoo, John C. 1998. Judicial Review and Federalism. HarvardJournal ofLaw and Public Policy 22(1): 197-203.

The Federalism Revolution and Its Meaning for Public Administration 931

DID YOU KNOW? Your ASPA Membership gives you free access to The Foundations of Public Administration Series"

The Foundations ofPublicAdministration Series isa collection of articles to be written by experts in

20 content areas who will provide introductory essays and the top recommended articles forthose subjects, both from PAR and other sources. As each content area becomes available, this web page will provide access to the article, to a list of references, and to a related syllabus.

All of the articles in PAR are available freeforASPA members. To download specific articles, just visit PAR Online by clicking on the link in the top banner of the PAR home page, or after logging in to the ASPA site at www.aspanet.org, click in the PAR/PA TIMES link on the top banner. Just scroll down to the two links below:

• Access PAR Issues from 1940-1999 (JSTOR) • Access PAR Issues from 2000-present

Each link will take you to a searchable database where you can find specific articles published in PAR

referenced by authors of the Series.

CONTENT AREAS:

NowAvaihble:

■ Human Resource Management ■ Public Administration History ■ Managing the Federal Executive Branch ■ Ethics in the Public Service ■ American Federalism, Intergovernmental Relations and Intergovernmental Management ■ Administrative Behavior and Organization

Coming Soon:

■ Administrative Communications ■ Administration Law ■ Administration Reorganization and Reform

■ Citizen Participation in Public Administration ■ Collaborative Management ■ Comparative Public Administration ■ Governance ■ Managing Urban America ■ Non-Profit Management ■ Public Administration Methodology ■ Public Budgeting and Finance ■ Public Service Leadership ■ Theory and Scope of Public Administration

This content downloaded from ������������209.36.218.226 on Tue, 07 Apr 2026 14:08:57 UTC�������������

All use subject to https://about.jstor.org/terms