The Federalism Revolution Did Not Take Place
In 1991, Jean Baudrillard provocatively titled a collection of essays as The Gulf War Did Not Take Place. In the book, Baudrillard did not embrace some bizarre conspiracy theory that the Gulf War was staged like many have contended about the Apollo moon landing. Instead, Baudrillard argued that the invasion of Iraq was not a “war” in any meaningful sense of the word. Although the media treated the run up to the conflict as the beginning of a possible global conflagration, the outcome was preordained. I remember the repeated statement that Iraq had the fourth largest army in the world as a particularly odd statement of propaganda. The death and environmental damage were real, but, to Baudrillard, the non-event could not be termed a “war.”
Baudrillard’s view of the Gulf War is perhaps more applicable to the so-called “federalism revolution” that was led by Justice Rehnquist. As a result of the Court’s opinions in Lopez and Morrison, many legal scholars felt that the Commerce Clause was seemingly reinvigorated as a means of limiting federal power. As hundreds of law reviews embraced the revolutionary narrative, the popular press joined them. To many, the revolution came to a screeching halt with the Court’s ruling in Raich. However, it was still possible to reconcile the doctrine in Raich (as a logical extension of Wickard v. Filburn) with Lopez and Morrison. Whereas marijuana was an economic good, sexual violence and guns were not (although the tension with Lopez was clear). However, with the Court’s recent decision in United States v. Comstock, the legacy of Justice Rehnquist in regards to the Commerce Clause seems to have vanished.
Although the district court and Fourth Circuit panel thought it was clear under Morrison and Lopez that the Commerce Clause could not justify federal civil commitment of certain persons believed to be a threat to commit future sexual violence, the Court embraced the government’s framing of the basis for federal jurisdiction. As there was no economic good at issue in Comstock and the parallel to the VAWA statute in Morrison was strong because of the regulation of sexual violence, the Court treated the case as involving the Necessary and Proper Clause. Justice Breyer created a multi-part test that seemed to remove the word “Necessary” from the Clause and embraced a very broad view of proper exercise of federal power. And how the statutes in Morrison and Lopez would not be justified by the newly crafted test was never explained.
One could simply view the Roberts’ Court’s counter-revolution as having shutdown Justice Rehnquist’s efforts. However, I think it is simpler and more accurate to say that there was never any revolution. The Court never wrote in terms of revolution. Even when deciding Lopez and Morrison, the Court left intact expansive precedents like Wickard. The government’s winning brief in Comstockrelied almost exclusively on precedents before the opinions of Rehnquist’s “revolution.” Like the media in the period before the first Gulf War, legal scholars saw a radical event unfolding. But just like the outcome in the Gulf War was preordained, none of us should be surprised that the hiccup in Commerce Clause jurisprudence represented by Lopez and Morrison was a non-event. And the collective focus of legal scholars on those decisions was, in hindsight, misguided.
And yet the belief in the enduring power of the Commerce Clause as a check on federal power has continued in regard to health care reform. Noted scholars, pundits, and other media have argued that existing doctrine in the area makes the recent federal health care law unconstitutional. Given Raich and Comstock, I admit to being baffled by this belief. The distinction that the government is regulating inaction seems wholly unconnected from the Commerce Clause. That Clause only determines who has the proper jurisdiction to deny liberty (the Feds or the States) – it has not offered a shelter for individuals from government regulation. Of course, no one saw Lopez and Morrison coming. Still, it seems that after Comstock, as a wholly doctrinal matter, the two most famous federalism decisions of the Rehnquist Court should be given their proper stature as minor opinions of little ongoing significance. And claims of a federalism revolution should be treated with skepticism.