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The Supreme Court’s Role in Restoring Federalism


Published February 18, 2020

The Supreme Court is in a position to restore federalism to the balance originally envisioned in the Constitution. Over the twentieth century, the balance of power between states and the federal government has shifted as a result of overly expansive interpretations of the spending and commerce clauses.

Discussion Questions:

  1. Is federalism an anachronistic expectation?
  2. Do you agree with Justice Thomas’s dissenting opinion in Gonzalez v. Raich (2005)?

Additional resources:

  • Read “The Supreme Court Should Make Politics Local Again” by John Yoo and James C. Phillips, available here.
  • Read “A Clash of Judicial Visions” by John Yoo and James C. Phillips, available here.


View Transcript

For the first time since the New Deal, the Supreme Court is in a position to help restore federalism – the relationship between the federal government and states – to the balance that was originally envisioned in the Constitution.

That balance shifted in favor of the federal government for most of the twentieth century, due in large part to expansive interpretations of two critical clauses of the Constitution by the Supreme Court.


First there is the spending clause, which gives Congress the power “to provide for the common defense and general welfare of the United States.” Its original interpretation meant Congress could tax and spend only to exercise its enumerated powers. But during the New Deal this power became nearly unlimited. With the help of the Supreme Court, Congress expanded its the scope so that the federal government could tax and spend to accomplish whatever it wanted.


The commerce clause has also been broadly interpreted by the Supreme Court. The Constitution authorizes Congress to regulate interstate commerce. But President Franklin Roosevelt and Congress prevailed upon the Supreme Court to reinterpret the commerce clause to give the federal government almost limitless regulatory power. Starting with cases in the 1940s, the Court found that just about every activity had an indirect effect on interstate commerce and therefore could be regulated —even activities confined solely to a single state.


For example, the court recently ruled in Gonzales v. Raich that homegrown marijuana that had never been bought, sold, or crossed state lines could be regulated as interstate commerce. No matter your opinion on the morality of marijuana use, it is hard to argue with Justice Thomas's dissenting opinion, where he wrote: “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”


You might think a strong federal government is ideal, especially when your political party is in control of Congress or the presidency, and national policy can help advance your agenda. But there are very good reasons for wanting to preserve power at the state level instead of handing it over to the federal government.


First, states serve as the “laboratories of democracy,” as famed liberal justice Louis Brandeis wrote. They allow the nation to experiment with a variety of policies to solve pressing national problems, with the bad effects of poor choices limited to a state and good ideas serving as models for wider adoption.


Second, states can tailor government programs to local conditions and different communities. States’ environmental laws, for example, differ due to existing air quality or available natural resources. And economic conditions may call for different kinds of work or welfare programs.


Third, because they’re closer to the people, smaller local governments may be better suited to handle certain subjects, like policies related to crime.


And finally, the framers of the Constitution created our federalist system to protect individual rights and to prevent the concentration of government power that had so often led to calamity.

To restore the proper balance to federalism in our constitutional order, the Supreme Court must return to the original understanding of the spending and commerce clauses:


The spending clauses tell us that Congress can only tax and spend on activities authorized by the Constitution, as long as that spending is on something that truly benefits the national defense or the welfare of the whole country.


The commerce clause says very clearly that Congress may regulate the sale or trade of goods that cross state lines.


Anything else is an unconstitutional expansion of federal power that should instead be reserved for the states.


Critics will complain that an originalist reading of the commerce clause will remove federal control over the environment, education, and health and welfare, among other issues. This may be true. But if the people want the national government to solve every problem and regulate every issue, they should amend the Constitution, not expand it beyond recognition.


If the Supreme Court does not put us back on a path toward federalism, then the federal government’s reach will continue to expand without regard for individual liberty or the enumerated powers of states.