Federalism 2.0 on the Roberts Court

One of the hallmarks of the Rehnquist Court was the so-called “New Federalism.” In cases like New York v. United States, Printz v. United States, United States v. Lopez, and United States v. Morrison, the Supreme Court identified new limits on the power of the federal government. The driving aim of “New Federalism” on the Rehnquist Court was to shift the balance of power towards the states and away from the federal government. In many respects, this “New Federalism” movement ground to halt in Gonzales v. Raich when the Court–including Justices Scalia and Kennedy–indicated that it was not willing to continue pushing the envelope in reducing the power of the Federal Government.

The Roberts Court has taken a different approach to Federalism–call it Federalism 2.0. This federalism focuses on protecting certain structural features of our constitutional system, not to benefit states’ rights qua states’ rights, but rather to protect individual liberty as an end unto itself. In Bond v. United States, Justice Kennedy identified the two purposes of separation of powers (this passage was repeated by Chief Justice Roberts in Stern v. Marshall).

“Separation-of­ powers principles are intended, in part, [1] to protect each branch of government from incursion by the others. Yet the dynamic between and among the branches is not the only object of the Constitution’s concern. [2] The structural principles secured by the separation of powers protect the individual as well.”

The former rationale is the reason behind “New Federalism.” The latter rationale is the reason behind Federalism 2.0.

In the words of Justice Kennedy in Bond v. United States–a unanimous case I discussed at some length here–federalism does not merely set the boundaries “between different institutions of government for their own integrity. ‘State sovereignty is not just an end in itself: ‘Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.’”

Here, we see that the focus is not simply on states’ rights, or sovereignty–really the bailiwick of the Rehnquist Court’s New Federalism–but the conception of enforcing structural limitations as a means to protect individual liberty. In Free Enterprise Fund v. Public Company Accounting Oversight Board, Chief Justice Roberts, citing Bowsher v. Synar, noted that “[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Liberty of the individual–not just the rights of the state.

Further, Federalism 2.0 does not merely delineate between the state and federal governments–it also creates an important distinction between the three branches of our tripartite system. In Stern v. Marshall, Chief Justice Roberts made clear that judges with lifetime tenure and guaranteed salaries–and not Article I judges–are the sole arbiters responsible for protecting individual rights. Citing Bond, the Chief noted, “Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges.” “Article III imposes some basic limitations that the other branches may not transgress.” And it is the role of Article III judges to enforce these limitations.

So what is the takeaway from this nascent Federalism 2.0? I think challenges to certain federal laws may have more success if the argument is framed in terms of federalism as protective of individual liberty, as opposed to merely challenging federal action as outside the bound of enumerated powers. As we saw in Comstock v. United States, an opinion joined by the Chief, and joined in judgment by Justices Alito and Kennedy, the Court is remiss to adopt a narrowed cabined view of the Necessary and Proper Clause, as well as the Commerce Clause.

While the relationship between liberty and enumerated powers is tight, focusing solely on enumerated powers or the necessary and proper clause is so 1995. This new Court requires a new argument–look to the liberty interests, as a corollary of federalism. “When government acts in excess of its lawfulpowers, that liberty is at stake.” Bond v. United States.

Think about reframing the argument in Raich. Why did the Court reach the conclusion it did? Because of the importance of the national federal interest in policing narcotics. Very little attention was paid to the tragic health and liberty interests of Angel Raich. The word “liberty” or “freedom” shockingly appears nowhere in either the majority, concurring, or dissenting opinions. For Angel, medicinal marijuana was her only refuge from intolerable pain, and represented a key element of her personal autonomy and human dignity. If the Court construed federalism here as a means to protect Angel’s individual liberty, rather than as a reflection on enumerated powers, perhaps the vote may have been different. Particularly for Justice Kennedy.

Additionally, this Roberts Court framework puts (perhaps intentionally) the liberal justices in a somewhat awkward position. They are generally in favor of construing federal powers broadly, but are also keen on protecting individual liberty interests (with the usualexception of Justice Breyer). Phrased in this manner, we have a convergence of federalist concerns and liberal concerns that could yield an interesting evolution in constitutional jurisprudence.

Going forward, if the argument is presented in terms of an “individual [who] has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States” and “can assert injury from governmental action taken in excess of the authority that federalism defines,” Bond v. United States, I think challengers may have more success.

Stay tuned for more on Federalism 2.0.

Cross-Posted at JoshBlackman.com

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17 Responses

  1. Brett Bellmore says:

    Frankly, if the justices aren’t willing to uphold separation of powers simply because it’s in the Constitution, the highest law of the land, which they are charged with upholding, then they’re corrupt. I suppose it’s nice if corrupt justices can occasionally find some motive to do a small part of their job anyway. But it’s rather like an umpire who only finds the will to call strikes accurately because the team they like is pitching. The ump is still crooked, as will be evident the moment the teams switch places.

    This new motive is no more guaranteed to line up with the Constitution we actually have, than any other motive other than fidelity to the rule of law is. It’s simply going to lead them astray in different contexts.

  2. anon says:

    It’s odd to note a shift in the states’ rights to individual rights, as you do here, when the author of some of the biggest opinions in the former domain (e.g., Alden) is also the author of really the only example from the latter (Bond).

  3. Josh Blackman says:

    Anon- We haven’t had a really big 11th Amendment case on the Roberts Court, though Virginia Office of Protection was close (with its discussion of Ex Parte Young). In that case the Chief and Justice Alito dissented. I’m curious how this will play out in future cases.

  4. anon2 says:

    What you are talking about here is not federalism. Federalism is the relationship between the states and the national government at any give time. So I do not think the name federalism 2.0 is apt. Just talking about separation of powers, really. Separation of powers and federalism both have related ends, but they are not the same concept and cannot be used interchangeable.

  5. Josh Blackman says:

    Anon2- Perhaps this is not an accurate term, but this is how I see the Roberts Court redefining Federalism–to focus on individual rights, and not just the interplay between the states and the federal government.

  6. A.J. Sutter says:

    I think your quote from Justice Kennedy tends to support anon2 — is a state really a “branch of government,” as it would need to be to make clause [1] a characterization of New Federalism? Or do you intend for the quote to be read mutatis mutandis? And even if the quote and your categorization are apt, if a federalism is newer than New Federalism, wouldn’t that make it 3.0 or at least 2.something?

  7. Josh Blackman says:


    Interesting point about the Kennedy quote. I’ll write some more about this and will follow-up later.

    Federalism 2.0 is a buzz-word more than anything else. I’m not really sure what version 1.0. Perhaps the original Federalism was a beta?

  8. anon2 says:

    If it is not federalism, do not call it federalism 2.0. It only works to confuse people and makes you look sloppy.

    It looks like you are just talking about separation of powers. So just write about how you think the Roberts Court is creating a new doctrine of separation of powers in order to further protect individual liberty.

    No need for buzzwords.

  9. Josh Blackman says:

    No, the buzzword portion was 2.0 (like web 2.0), not Federalism. I also considered calling it the New New Federalism, but that didn’t sound good.

    I still think the Court views this as Federalism, and not just separation of powers. You could disagree about this point, but I think the Court’s opinions tell a different story.

  10. Dave Hoffman says:

    I’m doubt Josh minds, but for the anons, can you please cool it? Concurring Opinions, at least in my view, isn’t really as welcoming of anonymous comments as other blogs, in part because of such comments well-known tendency toward promoting ugly threads.

  11. AF says:

    Josh, I think you’re conceding too much to the anon2, who doesn’t seem to have read Bond. Bond is clearly a federalism case — it was about whether an individual had standing to contend that Congress exceeded its enumerated powers — and was recognized as such by the Court. For example:

    “The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. See New York, supra, at 181. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.”

  12. anon2 says:

    I agree with the poster above. That section of the opinion is making a statement about federalism. In particular, that federalism is an concept that protects states’ rights but also one that protects individual liberty. Find and dandy, no argument there.

    Where I think Josh makes a mistake is pretty much everything after this passage:

    Further, Federalism 2.0 does not merely delineate between the state and federal governments–it also creates an important distinction between the three branches of our tripartite system.

    By definition federalism is simply the relationship between the national and state governments. Once you start to discuss the distinct roles of the branches of government, you stray from federalism and get into a discussion of separation of powers.

    What follows the above passage, as well as the quote included, seeks to explain separation of powers issues, and do not discuss of concern themselves issues of federalism. So I think this a mistake to claim that the Court is moving toward a new conception of federalism.

  13. biglaw associate says:

    Josh, what you describe is not a new idea. You’re just giving an old idea a new buzzword. I think you should stick to copying-and-pasting SCOTUS syllabi (and calling it “instant analysis”) or promoting your personal blog.

  14. Zubek says:

    Blackman, you’re being absurd. “Federalism” connotes relations between the national govt and the states. A case only implicates federalism if it involves a tension between the national govt’s powers and a state govt’s powers. If one of those things is absent, the case is not about federalism. Instead, it’s about individual rights, the structural powers of the national govt, etc.

    Whereas a tangential effect of forcing the national govt to back off in certain areas might be to protect individual rights, that fact alone doesn’t make something “federalism.” Obviously, your run-of-the-mill Establishment Clause case in which the national govt is forced to back off in a certain area because it violates the First Amendment, for example, does not implicate “federalism” concerns.

    It’s cool that you’ve given a fancy title to a basic idea and then tried to stretch that idea into some sophisticated theory, but you haven’t really identified anything that’s enlightened, unique, or even entirely correct. Maybe you should focus on your TA position at Dickinson Law School… Whose decision was it to put Blackman on here? Isn’t this a blog for real professors?

  15. Danielle Citron says:

    I’m with my co-blogger Dave Hoffman. Derogatory comments aren’t the norm here, and I’m hoping that we can elevate some of this discussion.

  16. Lawrence Cunningham says:

    Concurring with Dave Hoffman (10) and Danielle Citron (15), please use kindly discourse here, and preferably your own name, recognizing that may be difficult for such people as CIA spies and federal court clerks.

  17. Michael J.Z. Mannheimer says:


    Nice post. If I read you correctly, I think you may have overstated the extent to which we have just discovered that individual rights and structural concerns are intertwined in the Constitution, and especially in the Bill of Rights. Akhil Amar was writing about this twenty years ago, and Arthur Wilmarth before him. And I think that some of the Justices have at least mouthed the rhetoric, at least on some occasions before this.

    What I think you have hit upon, however, is that the notion of individual rights and structural concerns being intertwined may be gaining some traction with some of the Justices beyond the level of mere rhetoric. I think there is a rich vein of ore that has yet to be mined in this area. Take a look at my “Cruel and Unusual Federal Punishments,” which I just posted on SSRN a few days ago, which suggests a way of looking at the Eighth Amendment that acknowledges both its federalism and individual rights strands: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1875868. I talk about Bond near the end.

    Oh, and I’ve found that if people do not have the guts to post under their own names, it’s best to ignore them.