Statement Federalism: Comments on S. 1214-The Federalism Accountability Act of 1999 Overall, OCSE and most state officials that we contacted said the joint planning process strengthened the federal/state partnership by enabling them to help shape the national program's long-term goals and objectives. State and local government stakeholder involvement has also been important in the development of practical and broadly accepted performance measures in other federal programs, including some block grants." We believe that these kinds of intergovernmental cooperation can serve as models for the kinds of efforts that section 8 of the Federalism Accountability Act of 1999 seeks to encourage. Contacts and Acknowledgment For future contacts regarding this testimony, please contact L. Nye Stevens or Curtis Copeland at (202) 512-8676. Individuals making key contributions to this testimony included Elizabeth Powell, Joseph Santiago, Alan Belkin, and V. Bruce Goddard. "Managing for Results: Measuring Program Results That Are Under Limited Federal Control (GAO/GGD-99-16, Dec. 11, 1998); Grant Programs: Design Features Shape Flexibility, Accountability, and Performance Information (GAO/GGD-08-137, June 22, 1998). TESTIMONY OF JOHN S. BAKER, JR., DALE E. BENNETT PROFESSOR OF LAW BEFORE THE SENATE COMMITTEE ON GOVERNMENTAL AFFAIRS ON THE FEDERALISM ACCOUNTABILITY ACT OF 1999 (S. 1214) JULY 14, 1999 Mr. Chairman and Members of the Committee: I am grateful for the opportunity to provide written testimony about The Federalism Accountability Act of 1999, S. 1214. First of all, I would like to say something about federalism in the context of criminal law as a follow-up to my May 6th testimony before this committee at its hearing on the federalization of crime. Although S. 1214 currently contains no provisions related to criminal law, I know committee members are interested in the negative impact of federal criminal law on state authority. This committee has already reviewed The Federalization of Crime Task Force Report from the American Bar Association's Criminal Justice Committee, and received suggestions about federalism restrictions on criminal law at the May 6th hearing. Therefore, some provision related to criminal law might be added to this bill during the legislative process. Although it did not appear in my previous written statement, at the May 6 hearings I did propose that Congress legislatively require in federal prosecutions encroaching on state criminal law, that the Government be made to establish to the district court the constitutionality of its claimed jurisdiction. This proposal was based on a brief observation in U.S. v. Lopez' that the Government should have the burden of proving, based on the facts of each particular case, that its prosecution falls within constitutional bounds.2 I believe requiring justification by the Government prior to impinging on traditional State criminal jurisdiction would be a more effective limit on federal criminal law than certain other proposed reforms. I realize that the proposal I put forward, however, requires further study and debate in order to craft the appropriate legislative language. Rather than acting too hastily on this or other suggestions which have been made, the committee might consider creating its own advisory group or committee to suggest possible legislation based on the ABA Task Force Report. Federalism clearly needs support: it is "down, but not out." In the legal academy, it is generally viewed, at best, as an antiquarian relic and, more commonly, as an intolerable obstruction to centralized, uniform, and (supposedly, therefore) rational policy-making. Federalism gets a better reception in the federal courts, as reflected by the Supreme Court's recent decisions on state sovereign immunity and the Eleventh Amendment,3 but its influence over the jurisprudence of federal-state relations is tenuous at best. Until President Clinton attempted to revoke President Reagan's Federalism Executive Order, the Executive Branch was more “federalism friendly" than it otherwise would be, given the natural bureaucratic bent toward planning and control. In recent years, the Congress has demonstrated considerable inconsistency towards federalism; some members have touted it, while at the same time attempting to nationalize whole new areas of law (national tort reform, for example). The States have been inconsistent as well; some state officials have opposed certain regulations on federalism grounds, while at the same time lobbying for new federal programs which necessarily increase federal control at the expense of state autonomy. For federalism to exist as more than an historical memory or empty campaign rhetoric, the principle needs to be more than a mere preference; it must be made a matter of practical necessity. That is what S. 1214 proposes to accomplish. By focusing on the problem of preemption as it does, this bill pushes federalism to the fore, where procedurally it will be difficult to ignore. A certain amount of theoretical background is useful in order to understand the need for legislation that actually enforces day-to-day respect for the principle of federalism. The Constitution's drafters believed that the protection of liberty required a structuring of power so that "Ambition [would] be made to counteract ambition." Federalist 51. They described what they created (what we today call "federalism) as "in strictness, neither a national nor a federal Constitution." Federalist 39.6 In this "compound republic of America," Madison said “[t]he different governments will control each other, at the same time that each will be controlled by itself." Federalist 51.7 Today, after decades of judicially-sanctioned expansion of federal power through the Commerce and Spending Clauses, the notion that the States control the federal government seems archaic. As developed below, the States are unable to do so, not merely as a result of the Commerce Clause jurisprudence, but because of 1) the Supreme Court's development of the preemption doctrine and 2) unanticipated impact of the Seventeenth Amendment on the relationship between the States and the Federal Government. I. THE PREEMPTION DOCTRINE The preemption doctrine is a gloss on the text of the Constitution. That is to say, the Constitution contains no preemption clause as such. Rather, it contains the Supremacy Clause which provides that the Constitution, federal statutes passed pursuant to it, and treaties, are the Supreme Law binding judges in every state, “the Constitution or laws of any state to the contrary notwithstanding.” Art. VI, Cl. 2. On its face, the Supremacy Clause only displaces state law to the extent that it conflicts with federal law. The Marshall Court set the foundation for federal-state relations in its great Supremacy Clause cases, most notably Martin v. Hunter's Lessee,' Gibbons v. Ogden,' and McCulloch v. Maryland.10 These cases involved federal statutes determined to be constitutional, which in each case conflicted with a state statute and/or court decision. Given a conflict between federal and state law, both could not prevail. The Supremacy Clause and, according to Federalist 32,11 common sense, dictated that valid federal law must prevail. Preemption eventually expanded well beyond the Marshall Court's Supremacy Clause jurisprudence. Under the modern preemption doctrine, state law may be defeated even when there is no direct conflict and even though Congress has not explicitly expressed its intent to preempt. It has been applied to situations in which a court determines that: 1) the federal law "occupies the field," Hines v. Davidowitz,122) federal law demonstrates the need for uniformity, Jones v. Rath Packing Co:13 or that 3) state law might impede the federal law, Pennsylvania v. Nelson. 14 .13 When the Supreme Court invalidates state law in the absence of a direct conflict, it does so on the basis that Congress intends the preemption. Apart from wondering how it is that Congress can preempt state law if no direct conflict exists, one might suppose that if Congress intended to preempt, it would say so. If Congress routinely fails to state expressly its intent to preempt, the natural inference would seem to be that Congress has no such intent. If the federal courts were genuinely concerned about federalism, not to mention separation of powers, they would adopt rules requiring Congress to express clearly its intent to preempt, just as the Supreme Court requires an express statement for legislation to be retroactive. 15 The Supreme Court does not, by its own admission," have clear rules for interpreting the intent of Congress regarding preemption. Therefore, if Congress wishes its intent to be clearly understood by the courts, the most sensible thing for it do is to create rules of construction. The only approach consistent with our federalism is something along the lines of the rules proposed in Section 6 of the Federalism Accountability Act of 1999. Under these provisions, no statute can preempt state law unless the "statute explicitly states that such preemption is intended." Agency accountability rules require not only an express statement, they cannot preempt state law without such preemption first being authorized by the controlling statute. A. The Supremacy Clause Makes the Preemption Doctrine Unnecessary The proposed rules of construction should be unnecessary given the Supremacy Clause. The Supremacy Clause has proven quite sufficient, without the preemption doctrine as an overlay, for the task of balancing concurrent and conflicting powers within our federal system. The basic premise of the Constitution is that unless otherwise clearly indicated, the powers of the federal government are concurrent with those of the states. As explained in Federalist 32, the federal government's jurisdiction is exclusive in only three kinds of situations. This exclusive delegation, or rather alienation, of State sovereignty would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union to which a similar authority in the States would be absolutely and totally contradictory and repugnant. I use these terms to distinguish this last case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority." Given concurrent jurisdiction, conflicts between federal and state law are inevitable and not entirely avoidable. For that very reason, the Constitution includes the Supremacy Clause. Many conflicts are avoided in the course of the representative process. When direct conflicts do occur, however, the Supremacy Clause controls. Congress cannot discover every actual or potential conflict. Indeed, it would be impossible to do so. Some conflicts arise after passage of the federal legislation. Where, however, no direct conflict occurs, the preservation of the concurrent jurisdiction or powers of the States should require that the Supremacy Clause not be applied to block state laws. In other words, the so-called preemption doctrine should be contracted and made coequal with the Supremacy Clause. Stripping the preemption doctrine as a gloss on the Supremacy Clause would do much to |