The Right Coast

May 27, 2004
Justice O’Connor and Federalism
By Mike Rappaport

Recently, the Supreme Court decided another important federalism case, Tennessee v. Lane. In Lane, the Supreme Court held that Title II of the ADA (that is, the Americans with Disabilities Act) was authorized by section 5 of the 14th Amendment. By contrast, in a 2001 case, Board of Trustees of the University of Alabama v. Garrett, the Supreme Court had held that Title I of the ADA was not authorized by the 14th Amendment. So the 14th Amendment authorizes Title II but not Title I. Why? Because Justice O’Connor says so.

But why does Justice O’Connor say so? Always a good question, but this time, at least, I think there is answer. In my view, Justice O’Connor is employing the following federalism principle: The Constitution should not be interpreted to completely eviscerate federalism limitations, but short of that Congress can do pretty much what it wants.

In Garrett, the justification for the legislation was that it enforced the 14th Amendment rights of the disabled, but the disabled are not specially protected by that Amendment in the way that racial minorities and women are (that is, laws affecting the disabled are subject to the lenient rational basis scrutiny applicable to all ordinary legislation). If Congress could legislate in those circumstances, then a great range of federal laws could be justified under the 14th Amendment and federalism would mean nothing. This same analysis serves to explain why federalism principles prevailed in certain 14th Amendment cases (such as Kimel involving the aged), but not others (such as Higgs involving women, who are entitled to more protection under the Amendment). One exception is United States v. Morrison, where the Court struck down a law even though it was protecting women. But there is a reason for this exception: the legislation in Morrison was much broader in another way – it applied not merely to the state but also to private actors – and allowing it would have left federalism pretty limited.

The Supreme Court’s new decision, Lane, also fits this pattern. In Lane, the Court found legislative authority under the 14th Amendment but only in one circumstance – when it was necessary to protect the right of access to the courts. This constitutional right of access serves to distinguish the legislation in Lane from ordinary legislation not implicating constitutional rights. Thus, Justice O’Connor could feel that her vote was not eviscerating federalism, since she was only approving laws that protect constitutional rights, not all ordinary legislation.

In the end, then, Justice O’Connor’s decisions in this area may not be entirely arbitrary, but they are extremely narrow. While one can bemoan the narrowness of her view of federalism, critics of the Rehnquist Court’s federalism decisions cry bloody murder every time she and the Court strike down a statute. To this day, many of these critics have never met a federal statute that they believe violates federalism principles. To read their writings, one would never know that federalism was originally one of the basic structural features of the Constitution.