Ideas with Consequences by Hollis-Brusky Amanda;

Author:Hollis-Brusky, Amanda;
Language: eng
Format: epub
Publisher: Oxford University Press
Published: 2014-01-15T00:00:00+00:00

IDEAS WITH CONSEQUENCES: STATE SOVEREIGNTY AND ANTI-COMMANDEERING

While Federalist Society network members (including the three very prominent members in dissent) expressed both frustration and disappointment with the decision of Chief Justice John Roberts to join with the liberal bloc of the Court in upholding the Individual Mandate in NFIB et al. v. Sebelius, this case actually represented a significant victory for this federalism-focused network, the culmination of decades of intellectual effort and investment. To wit, Federalist Society member and mastermind behind the ACA legal challenge, Randy Barnett, wrote shortly after the decision in Sebelius that, from his perspective, proponents of federalism and limited government had actually won, even while losing.94 As this chapter and previous have chronicled, the ways in which proponents of federalism have “won” are in fact many.

After reading the opinions in New York, Printz, and Sebelius, no legal scholar or court-watcher can reasonably declare that the Tenth Amendment is understood by the current Supreme Court to be a dead letter, a “mere truism.” As we saw in both the current and previous chapter, several Justices went out of their way in both the majority and concurring opinions to breathe new life into the Tenth Amendment. Even though the Tenth Amendment had played a mere supporting role in the majority opinions in New York and Printz, through its dicta and rhetoric in those cases the Supreme Court had succeeded at, as one Federalist Society network commentator described in a February 2000 Weekly Standard article, “blow[ing] the dust off the Tenth Amendment.”95 While this Tenth Amendment rhetoric, undergirded in critical ways by Federalist Society network intellectual capital, would be important for supporting the Supreme Court’s decision 12 years later in Sebelius, it has also contributed to a broader revolution in state sovereignty—one that has included the Supreme Court’s adoption of a novel and expansive understanding of the Eleventh Amendment’s State Sovereign immunity doctrine.96

As I explain elsewhere, over the past 20 years the Supreme Court has used both of these doctrines in surprising ways to push back against perceived incursions into state power and state prerogative (Hollis-Brusky 2013). This robust understanding of state sovereignty and its implications for the future of federal power was on full display in former Federalist Society network advisor Justice Antonin Scalia’s dissenting opinion in the controversial 2012 Arizona immigration case, Arizona et al. v. United States.97 In his dissent, which was joined in part by Federalist Society–affiliated Justices Thomas and Alito, Scalia draws on the Tenth and Eleventh Amendments to articulate an argument for an extreme version of state sovereignty—one that, as the majority warned, if accepted would allow “every State [to] give itself the independent authority to prosecute federal. . . violations” and, in essence, create a system of 50 separate sovereigns, each with the power to enforce federal law as it saw fit.98 While this opinion did not command the majority of the Supreme Court in this case, the same robust state sovereignty logic undergirding it was used by the conservative majority to strike down Section 4 of the Voting Rights Act in Shelby County v.

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