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46 Fordham L. Rev. 1115 (1977-1978)
National League of Cities v. Usery--The Commerce Power and State Sovereignty Redivivus

handle is hein.journals/flr46 and id is 1127 raw text is: NATIONAL LEAGUE OF CITIES V. USERY-THE COMMERCE POWER AND STATE SOVEREIGNTY REDIVIVUS BERNARD SCHWARTZ* I. INTRODUCTION L ike Hamlet's father, state sovereignty is a ghost that refuses to remain in repose. Not too long ago, the concept of the states as independent sovereignties appeared to be an anachronistic survival from pre-Civil War days. The century since that time has seen a dramatic shift in the federal system's constitutional center of gravity. It is, in Justice Jackson's words, undeniable that . . . we have been in a cycle of rapid centralization, and Court opinions have sanctioned a considerable concentration of power in the federal government with a corresponding diminution in the authority and prestige of state gov- ernments. ' During the past four decades the Supreme Court has all but over- turned the previous limitations on the exercise of federal authority.2 So far-reaching had the development in this respect become that observers could have asked whether it portended the replacement of the federal system by a unitary government in which the states would be reduced to vestigial appendages of an all-powerful nation. If the states still had something of the magic of Athens and of Rome,'3 perhaps they were also destined to share the ultimate fate of those once-flourishing polities, so far as the reality of governmental power is concerned. With the decision of the Supreme Court in National League qf Cities v. Usely,4 it may turn out that the demise of the federal system bears a resemblance to the now legendary report of Mark Twain's death. For the first time since the constitutional revolution of the 1930's, the Court struck down an exercise of congressional power under the commerce clause, and it did so on the ground that the federal statute at issue invalidly impinged upon the operation of the states as coordinate independent governments. If anything seemed inconsistent with the past four decades of concentration of authority in the federal govern- ment, it was the notion that the states still possess the attributes of * Edwin D. Webb Professor of Law, New York University School of Law. 1. R. Jackson, The Supreme Court in the American System of Government 65-66 (19551 See generally Kurland, Foreword, The Supreme Court, 1963 Term, 78 Harv. L. Rev. 143, 162-63 (1964). 2. See notes 34-63 infra and accompanying text. 3. H. Laski, The American Democracy 139 (1948). 4. 426 U.S. 833 (1976). 1115

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