Democrats are loudly predicting disaster now that Congress will return to Republican control in January.

To be fair, the announcement by Trent Lott that the Senate would take up the partial-birth abortion ban bill, and the surprise move by Republicans in the House to scotch the overhaul of federal bankruptcy system, offers some support for claims that "social conservatives" will be calling the shots.

The New York Times has even called for the Senate to filibuster President Bush’s judicial nominees lest the federal judiciary, too, become a lasting legacy of the shift in power.

However, Democrats might want to consider that a "conservative" U.S. Supreme Court --with a renewed interest in limiting the power of Congress-- might be their new best friend. For example, two of the items on the GOP’s legislative wish list that Democrats fear becoming law turn out to be vulnerable under two "conservative" lines of Court doctrine.

First, the Court has recently insisted on locating and enforcing limits on Congress’s power to regulate "commerce among the several states." The commerce power has been the engine of the modern regulatory state, but in two cases, the United States v. Lopez in 1995, and a 2000 follow up, United States v. Morrison, the Court indicated that unless Congress restricted its regulation to things that actually involved commercial or economic activity and made clear how, exactly, those activities had a substantial effect on interstate commerce, its regulations would be struck down. Quoting John Marshall, the Court observed that any interpretation of the Commerce Clause permitting Congress to legislate without limits could not be correct.

Second, the Court has pronounced another limit on congressional power by holding that Congress cannot commandeer state legislatures or state executive officials to pass or implement Congress’s mandates. If Congress wishes the states to do something, they must make it a matter of federal law (which prevails over conflicting state laws.)

At the time, these decisions produced much liberal gnashing of teeth, especially as they shot down policy proposals popular with Democrats, including part of the Brady Bill and a civil remedy for victims of gender-based violence. The Court, liberals complained, was arrogating to itself the right to second-guess Congress in the name of federalism. Any limitations on Congress’s power, the arguments ran, should be left to the "political process" and not be judicially enforced.

But that was back when Democrats controlled most of the federal government. Now they may find notions of limited government more appealing, and even useful, in opposing issues such as the partial-birth abortion ban and federal tort reform.

The partial-birth abortion ban is vulnerable because it would be difficult for Congress to demonstrate how a medical procedure -- usually regulated by the states-- is "economic" or "commercial" in nature or "substantially affects" interstate commerce. Given the small number of these procedures performed each year, it would be hard to meet the Court’s relatively high threshold. States may have the power to ban partial-birth abortions (if their laws don’t conflict with the Court’s abortion cases, which leave wide latitude for third-trimester limits on abortion) but Congress does not. (Federal laws against cloning or stem cell research may face a similar problem).

Plans to reform state tort systems by capping damage awards, limiting punitive damages, and curbing certain theories of liability also look vulnerable before a conservative Court. While tort suits undoubtedly have an effect on the economy, there is scarcely any human activity that doesn’t. But the Court has made clear that the Commerce Clause is not a blank check.

For example, in Lopez, the government argued that guns and violence in schools have an effect on learning, which has an effect on students, which has an effect on the economy, since violent schools are unlikely to produce an educated workforce. Violence against women, it was argued, resulted in lost wages, lost productivity, foregone career opportunities, etc. While the Court conceded that these things may be true, the Court said that finding these conditions to be issues of interstate commerce would mean the Commerce Clause would have no limits-- and it was designed to have limits.

Moreover, there is the threshold question whether a tort suit is really a commercial activity at all. Many would argue that tort actions are designed to compensate a victim for a loss and punish the perpetrator --either of which is really "commercial" activity.

Requiring state judges to limit jury awards in line with federal limits imposed by tort reform legislation might also violate the Court’s "anticommandeering" principle. The Court has made much of the fact that federal mandates to state legislatures and executive officials reduce transparency and accountability—state officials have to take flak for unpopular mandates that originate with the federal government, while Congress can take credit for doing good deeds while insulating itself from criticism by those who feel the effects of implementation.

The argument would seem to work here: defendants in civil law suits would find jury verdicts reduced by state judges (many of which are elected) who were merely doing Congress’s bidding. Though the Court has not addressed the question whether state judicial officials are different from other state officials, it seems inconsistent to carve out an exception for state judges.

The limits on the federal government that the Court has started to enforce again should be regarded as no less a protection of individual liberty than, say, the First Amendment. The more limits on Congressional power, the less un-freedom Congress can impose on individuals. Despite the Court’s vigorous enforcement of free speech at the expense of federal and state laws, few call for leaving First Amendment limits to "the political process."

Second, despite the GOP’s fervent embrace of federalism, recent Republican proposals demonstrate that some members’ support for it, once in power, is not very deep. Democrats should not hesitate in the months ahead to make Republicans who claim to be federalists live up to the principles they have been so loudly proclaiming.

Glenn H. Reynolds is professor of law at The University of Tennessee, Knoxville and publishes the InstaPundit.Comwebsite.

Brannon P. Denning is an assistant professor of law at Southern Illinois University in Carbondale.

 

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