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1 Geo. J.L. & Pub. Pol'y 49 (2002-2003)
The Role of the Judiciary in Preserving Federalism

handle is hein.journals/geojlap1 and id is 53 raw text is: The Role of the Judiciary in Preserving Federalism
The Supreme Court's revival of federalism is the most important develop-
ment in constitutional law of the past decade. The Constitution creates a federal
government of limited and enumerated powers. Each branch of government
bears some responsibility for maintaining the limits of federal power. The
judiciary, however, has a particularly important role to play, as judicial review
provides an essential safeguard against governmental excess. Where Congress
or the Executive oversteps the constitutional bounds, it is the responsibility of
federal courts to say so. Judicial review is no less important for the preservation
of federalism than for the direct protection of individual rights.
The Rehnquist Court's initial forays into federalism were a surprise to some.
The New Deal revolution eviscerated most limits on federal power. The Inter-
state Commerce Clause,' for example, was transmuted into a plenary federal
police power. With a polite nod to our dual system of government,'2 the
Supreme Court upheld one expansive statute after another, until there was little,
if anything, beyond the reach of the enumerated powers. Well through the
1980s, with few exceptions, the Supreme Court showed little interest in policing
the division of state and federal power.
Beginning in 1992, however, the Court reversed course. In New York v.
United States,3 the court struck down portions Of the Low-Level Radioactive
Waste Policy Amendments Act of 19854 for infringing upon state power. The
Court held that Congress did not have the authority to commandeer state
legislatures. Three years later, the Court reaffirmed this indication that the
interstate commerce power had limits. In United States v. Lopez,5 the Court
struck down the Gun-Free School Zones Act of 19906 for exceeding the scope
of Congress' enumerated power to regulate commerce among the several states.
Possessing a gun in or near a school was neither commercial nor interstate, and
therefore beyond the reach of the national legislature.7 Subsequent cases reaf-
firmed the principles that federal power is limited and that enforcing such limits
is a proper subject for judicial review.8
Previous Courts had acted as though the federal courts had no role at all in
policing the limits of federal power. Justice Blackmun in Garcia v. San Antonio
* Assistant Professor of Law, Case Western Reserve University School of Law.
1. U.S. CONST. art. I, § 8, cl. 3.
2. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).
3. 505 U.S. 144 (1992).
4. 42 U.S.C. § 2021 (1985).
5. 514 U.S. 549 (1995).
6. 18 U.S.C. § 922(q) (Supp. V 1988).
7. Lopez, 514 U.S. at 567.
8. United States v. Morrison, 529 U.S. 598 (2000); Reno v. Condon, 528 U.S. 141 (2000); Printz v.
United States, 521 U.S. 898 (1997).

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