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The Court marks the limits of federalism.

Article Excerpt
When historians look back at the Rehnquist Court, undoubtedly they will say that its most significant changes to the law have been with regard to federalism. In the last decade, the U.S. Supreme Court has limited the .scope of Congress's power under the Commerce Clause and [section] 5 of the Fourteenth Amendment; revived the Tenth Amendment as a constraint on federal power; and greatly expanded the scope of state sovereign immunity.

Last term, however, the Court rejected the "states' rights" argument and ruled in favor of federal power in each of the three federalism cases that it heard. It would be a mistake to read these decisions as a sign that the five conservative justices--who have been the majority in all of the recent federalism cases--are now abandoning their position.

Nothing in any of these cases suggests a retreat from any of the states' rights decisions from the last decade. Rather, the cases are important because they show that the Court's receptiveness to federalism arguments has limits and that there are many instances in which even the five pro-federalism justices will rule in favor of federal power.

Reining in Congress

In recent years the Supreme Court has dramatically narrowed Congress's ability to authorize suits against state governments. For example, in 1996, in Seminole Tribe v. Florida, the Court held that Congress may authorize suits against states using only laws enacted under [section] 5 of the Fourteenth Amendment--not using any other congressional power. (1)

In 1997, in City of Boerne v. Flores, the Court limited Congress's [section] 5 powers to prevent or remedy violations of rights recognized by the Court, stating...

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