Jan | Feb 2014


Federalism and the Supreme Court

By Lisa Soronen and Victor Kessler
The legislative and executive branches have been in a longstanding gridlock, making it difficult to assess their standing on federalism.
But the U.S. Supreme Court has made its standing clear. The last two Supreme Court terms have produced four blockbuster decisions. All four of these cases have one thing in common—federalism.
In the Affordable Care Act case, the Court concluded the individual mandate violates the Commerce Clause but held the mandate is constitutional as a tax. In the Arizona case, the Court held that federal law pre-empts three provisions of the state’s immigration law but not the most controversial provision—“show me your papers.”
In one of the same-sex marriage cases last term, the Court held that section 3 of the Defense of Marriage Act, which defined marriage as only between a man and a woman for federal law purposes, is unconstitutional. Justice Anthony Kennedy’s majority opinion reasoned that the federal government has always deferred to the states on the issue of marriage.
In the Voting Rights Act case, the Court relied on the “fundamental principle of equal sovereignty” among the states to strike down the law’s coverage formula, which defined the states that had to seek federal preclearance for changes to election requirements.
Federalism has fared very well in these four decisions. All four cases had at least a partially good outcome from a separation of powers perspective.
This term, the Court will take up a number of cases involving controversial issues affecting the states. Two of these issues—religion and abortion—haven’t been tackled much by the Roberts-led court. Both involve First Amendment challenges to a state law or a local policy.
 

First Amendment

Town of Greece v. Galloway might redefine the Court’s approach to legislative prayer practices.
In the 1983 case, Marsh v. Chambers, the Court held that a state legislature could, without violating the First Amendment, hire a chaplain to deliver a prayer at the beginning of its sessions as long as the practice was not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.”
The official policy in the Town of Greece, N.Y., allows any person of any or no denomination to deliver an invocation at the beginning of town board meetings, and the town does not approve or even examine the prayer in advance. In practice, all but four invocations have been led by Christians.
The Court will review a “totality of the circumstances” test used by the Second Circuit to declare the town’s practice an unconstitutional violation of the Establishment Clause and revisit its holding in Marsh for the first time in three decades. If the Court holds that the Town of Greece’s prayer policy is unconstitutional, state legislatures may have to change their prayer policies and practices.
In McCullen v. Coakley, the Court will examine the constitutionality of a Massachusetts law that creates a 35-foot “buffer zone” around reproductive health care facilities into which demonstrators are not allowed to enter. Two other states have adopted similar statutes.
A 2008 case, Hill v. Colorado, upheld a similar law against a First Amendment challenge because it addressed a legitimate state concern for the safety and privacy of individuals using the facilities, was content-neutral in that it applied to all demonstrators equally regardless of viewpoint, and regulated the time, place and manner of speech without foreclosing or unduly burdening the right of demonstrators to communicate their message.
A broad ruling striking down the Massachusetts statute could have sweeping consequences beyond this particular context, as state governments are continually challenged to strike a balance between free speech rights and the duty to protect their residents from harassment at clinics, funerals, political events and other locations. The State and Local Legal Center will file an amicus brief in this case.
 

Affirmative Action

The Roberts-led court has tackled another controversial subject coming up this term—affirmative action—more than once.
Schuette v. Coalition to Defend Affirmative Action is more significant than previous affirmative action cases for federalism purposes because it involves a challenge to a state constitutional amendment.
The Court will consider the constitutionality of a 2006 Michigan state constitutional amendment that prevents the state and its universities from giving preferential treatment to any individual or group on the basis of race, relevant here in the university admissions context.
Unlike last term’s Fisher v. University of Texas at Austin, which deferred a ruling on the constitutionality of an affirmative action program, Schuette asks the Court to determine whether banning affirmative action altogether violates the 14th Amendment’s Equal Protection Clause.
As in Fisher, Justice Elena Kagan has recused herself from the case, leaving eight justices to consider the issues and making a broad pro-affirmative action ruling unlikely.
 

EPA Regulations

While Environmental Protection Agency v. EME Homer City Generation involves a significant number of states suing each other, federalism is at the heart of one of the questions the Court will decide. This case focuses on the scope of the EPA’s authority to regulate states contributing to air pollution in other states downwind.
Under the Clean Air Act, the EPA sets air quality standards and the states create state implementation plans to achieve them. The EPA may impose its own federal implementation plan only if a state fails to submit or fails to correct a state plan rejected by the federal government.
If the Court does not dismiss the case for a lack of federal jurisdiction, it will decide whether a federal implementation plan may be implemented based on a state’s failure to submit an adequate state implementation plan before the EPA had defined downwind pollution reduction targets, and whether the Clean Air Act permits the EPA to define a state’s contribution to pollution downwind in terms of cost-effective pollution controls or solely in terms of the physical amount of pollution.
So far the Supreme Court hasn’t accepted a federalism blockbuster for its current term. The combination of cases the Court has accepted, however, should create sufficient intrigue for anyone interested in federalism.
 
Lisa Soronen is executive director of the State and Local Legal Center. Victor Kessler is a legal intern at the center.