Federalism has been in the news a lot over the past few years. The Republican-controlled Congress has enacted restrictions on the imposition of unfunded federal mandates on state governments and has passed significant welfare reform, one of the keys to which is greater state freedom in the implementation of welfare programs. The President, although often seen as resisting the more extreme Republican proposals for devolution, is himself something of an advocate for states’ rights. Clinton was a governor before he was President, and in that capacity he experienced a number of frustrations with federal red tape. Perhaps as a result, the Clinton Administration has been generous in granting waivers to States under federal entitlement programs – far more so than were the Reagan and Bush Administrations.
Perhaps the biggest news on the federalism front in recent years, however, has come from the Supreme Court. The Court has rendered a series of dramatic decisions shifting power from the federal government to the States. In United States v. Lopez, the Court held that Congress has no power under the Constitution to make it a federal crime to possess a gun within 1000 feet of a school yard. The federal government defended the statute as a permissible exercise of Congress’s power to regulate interstate commerce, but the Court said it could not see how the mere possession of a gun near a school yard, not itself a form a commercial activity, would have a substantial affect on the movement of goods and services in interstate commerce. So for the first time since 1937, the Supreme Court struck down a federal law as being beyond the powers of the federal government to regulate interstate commerce.
Constitutional Law | Law
Thomas W. Merrill,
A New Age of Federalism,
Green Bag 2d
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3552