Effect of Provision on Federal Powers
Later indications are that the Court may be looking for ways to back off from Garcia. One device is to apply a ”clear statement” rule requiring unambiguous statement of congressional intent to displace state authority. After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, the Court in Gregory v.
Ashcroft explained that, because Garcia ”constrained” consideration of ”the limits that the state-federal balance places on Congress’ powers,” a plain statement rule was all the more necessary. ” inasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress‘ Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.”
The Court’s 1992 decision in New York v. United States, may portend a more direct retreat from Garcia. The holding in New York, that Congress may not ”commandeer” state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum and in no way inconsistent with the holding in Garcia. Language in the opinion, however, sounds more reminiscent of National League of Cities than of Garcia. First, the Court’s opinion by Justice O’Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; ” the Tenth Amendment thus directs us to determine.
Whether an incident of state sovereignty is protected by a limitation on an Article I power.” Second, the Court, without reference to Garcia, thoroughly repudiated Garcia’s ‘’structural” approach requiring states to look primarily to the political processes for protection.
In rejecting arguments that New York’s sovereignty could not have been infringed because its representatives had participated in developing the compromise legislation and had consented to its enactment, the Court declared that ” the Constitution does not protect the sovereignty of States for the benefit of the States or State governments, for the protection of individuals.” Consequently, ”State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.” The stage appears to be set, therefore, for some relaxation of Garcia’s obstacles to federalism-based challenges to legislation enacted pursuant to the commerce power.
