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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?