Liberty
Matters Journal
Summer
2001 Issue
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The Renewal of Federalism by Vince Hazen & Paul Terrill Recently, the Supreme Court has made important rulings that give hope to property owners victimized by oppressive federal regulations. Hopefully, these rulings signal that once again the Supreme Court will limit the Federal Government to those powers specifically enumerated in the United States Constitution. To fully understand the current debate over the proper role of the Federal Government, it is necessary to put the debate in the proper historical and political perspective. The Framing of the Constitution After the War for Independence was won, our Founding Fathers had the seemingly insurmountable task of forging a new government from the loosely organized states. How could these independent states with diverse interests and concerns be organized under a true national government, yet retain their status as sovereign states? Undaunted by the challenges before them, a constitutional convention was called and the delegates met in Philadelphia to forge a new nation. Having just fought the war against British tyranny, one of the main concerns addressed by the delegates was how to prevent a national government from mushrooming into an all-encompassing, overreaching central government far removed from its citizenry. To prevent this, the Founding Fathers created the concept of “Federalism”- granting to the newly formed federal government only those specifically enumerated powers absolutely necessary to fulfill the limited role of the federal government. All remaining powers were to be retained by the individual citizens and the states. This would help protect the rights of the individual citizens from the tyranny of a powerful central government. This new and revolutionary concept was greeted with much skepticism by the other governments of the world. Not only was the federal government given limited, enumerated powers, but the power that was given to the Federal Government was divided among three branches - the Executive (President), Legislative (Congress) and Judicial (Supreme Court). This system of checks and balances gave further protection to the citizens of the new country. The new Constitution presupposed that all political power rested with the people, with subsequent redistribution of certain powers to the states and certain powers to the federal government. As stated by James Madison:
The powers granted to the federal government in the Constitution are those powers which common sense dictates should be wielded on a national level. For example, the federal government was empowered to raise an army and navy, create a post office and a highway system, coin money, wage war and sign treaties. All other rights and powers not specifically granted to the federal government were explicitly reserved to the individual citizens and the states. In addition, in Article I, Section 8, Clause 3 of the Constitution, the federal government was given the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This provision was called the “Commerce Clause.” This provision allowed the Federal Government to ensure growth through trade with other nations and between the states. Otherwise, individual states were prone to enact their own trade barriers with other countries and with the other states. Roosevelt’s New Deal For the next one hundred and fifty years, the Federal Government kept to the role envisioned by the Founding Fathers. Then in 1929, the stock market crashed and the United States, and the rest of the world, plunged into the Great Depression. In 1932, Franklin Roosevelt won the presidential election by making a number of sweeping promises to the American people - which promises were coined as the “New Deal.” Almost immediately after taking office, Roosevelt called on Congress to convene and began what would be known as the “Hundred Days.” During this time, Roosevelt unleashed a flood of legislation creating expansive federal programs purportedly to curb the effects of the Depression. These New Deal programs dramatically increased the size and scope of the Federal Government above and beyond its historic - and constitutionally mandated - role. To gain support for these clearly unconstitutional programs, Roosevelt exploited developing class divisions, formed close alliances with organized labor, and increasingly castigated the big-business groups that opposed his New Deal programs. Fortunately, the framers of the Constitution had separated the power of the Federal Government among the President, the Congress, and the Supreme Court. Any legislation Roosevelt slid by the Congress still had to pass Constitutional muster before the Supreme Court. As expected, the Supreme Court struck down many of Roosevelt’s programs as unconstitutional. A keystone of the New Deal was the National Industrial Recovery Act of 1932 which gave the President the power to approve and impose codes for various industries and trades. The Supreme Court found the Act unconstitutional in Schecter Poultry Corp. v. United States (1) , which involved the application of minimum wage and maximum hour provisions to a slaughterhouse. Similar fates befell the Railroad Retirement Act of 1934 (2) and the Agricultural Adjustment Act of 1933. (3) Constitutional Crisis After the Supreme Court struck down some of his New Deal legislation, Roosevelt retaliated by proposing legislation that would allow him to “pack” the Supreme Court with “enlightened” justices who would support the New Deal. Specifically, Roosevelt proposed that when any judge on the United States Supreme Court reached the age of 70 and did not resign, the President could then appoint an additional judge to the court where the judge served. At the time, there were six members of the Supreme Court over the age of 70. This would have allowed Roosevelt to pack six new justices on the Supreme Court to change the ruling on the New Deal legislation. Although the Senate Judiciary Committee rejected Roosevelt’s bill, there is a debate on whether the threat of political retaliation induced Justice Roberts to look more favorably on the New Deal legislation and change his vote, hence, the saying “the switch in time saved nine.” (4) For whatever reason, the next New Deal program before the Supreme Court was found constitutional based on Congress’s Commerce Clause authority. (5) For the next sixty years, the Supreme Court upheld every piece of legislation brought before it, no matter how far beyond the scope of the enumerated powers granted to the Federal Government in the Constitution, pursuant to Congress’ Commerce Clause authority. It would have been inconceivable to the Framers of the Constitution that the seemingly innocuous Commerce Clause would be tortured and twisted from its original role of granting the authority to regulate commerce between the states into the “Hey, you-can-do-whatever-you-feel-like Clause.” (6) The Restoration of Our Federalism? Our Federalism, a federal government of limited, enumerated powers, was thought by many to be in deep slumber, if not terminally comatose - at least as far as restrictions on the federal commerce power were concerned. However, in 1995, in the landmark case of U.S. v. Lopez (7), the Supreme Court reaffirmed the doctrine of Enumerated Powers by striking down the Gun-Free School Zones Act. For the first time since the New Deal Era, the Supreme Court invalidated a statute by finding that Congress exceeded its Commerce Clause power. Lopez rejuvenated the constitutional doctrine of Enumerated Powers and, in the process, returned Congress’ authority under the Commerce Clause to its commercial origins. Many lower courts, perhaps numbed by the previous sixty years of unconstitutional excess by the federal government, largely refused to acknowledge that the Supreme Court meant what it said in Lopez. However, Lopez’s holding was recently re-affirmed and extended by the Supreme Court in United States v. Morrison (8). That case struck down the Violence Against Women Act as being beyond Congress’ Commerce Clause authority. This return to original Constitutional principles by the Supreme Court offers a significant opportunity for those victims of unconstitutional federal regulation to accomplish judicially what Congress does not have the intestinal fortitude to do itself - roll back sixty years of excessive federal regulations that have nothing to do with interstate commerce. One area ripe for judicial review is the Endangered Species Act (“ESA”). Although two prior Commerce Clause challenges have been made to the application of the ESA to specific species, those challenges were not successful. The first case, National Association of Homebuilders v. Babbitt (9), involved a challenge to the application of the ESA using a species of fly. However, the case was brought in California, which meant it was heard by the 9th Circuit Court of Appeals, one of the nation’s most liberal court of appeals. As the Commerce Clause is the vehicle through which virtually every Federal social program has been enacted, there is no chance that a liberal court will ever find that Congress has exceeded its constitutional authority under the Commerce Clause, especially if doing so meant striking portions of the ESA. The second case, Gibbs v. Babbitt (1), was a challenge to the listing of the Red Wolf. However, at one point, the Red Wolf was actually traded for its pelts and the habitat of the Red Wolf extends across state lines. This makes the application of the Commerce Clause at lease arguable. Because both the 9th Circuit and the 4th Circuit Courts of Appeals agreed with the application of the ESA to the species in question, there is no reason for the Supreme Court to have granted review of those cases because there is no conflict among the circuits. For the Supreme Court to grant review and have the opportunity to extend the holdings of Lopez and Morrison to the ESA, a Circuit Court will have to find the ESA unconstitutional. The ideal challenge to the ESA would involve a purely intrastate species that has never had any commercial implications. The American Land Foundation, a non-profit property rights foundation, is currently supporting one such case, GDF Realty Investments, LTD, et al v. Babbitt, et al. Fred Purcell, the principal of GDF, owns 216 acres of valuable land at a major intersection in Austin, Texas. His land has many very small fissures or crevices. Several years ago, a biologist discovered certain “cave bugs” that supposedly are unique and have thus been listed as endangered species living on Purcell’s property. These cave bugs live their entire lives underground, are almost microscopic, and prior to their discovery by the biologist, nobody knew they even existed. Nonetheless, based on these cave bugs, the federal government has seen fit to prevent Mr. Purcell from doing anything but paying the mortgage and the taxes on this valuable piece of property. In fact, Mr. Purcell’s 10 year battle with the Fish and Wildlife Service has driven his company into bankruptcy to avoid the foreclosure of the property. The American Land Foundation is supporting Mr. Purcell’s case because it presents an ideal opportunity to help a landowner regain the use of his land while at the same time restoring the Federal Government to its proper constitutional role. Mr. Purcell’s challenge to the Endangered Species Act is currently before Federal District Judge Sam Sparks in the Austin Division of the Western District of Texas. If the current Supreme Court is as committed to restoring the Federal Government to its proper constitutional role as it would appear, the cave bug suit may be an ideal case to test the resolve of the Court and to hopefully restore the use and the enjoyment of the land to its owners free from the intervention of the Federal Government. Endnotes 1. 295 U.S. 495 (1935).
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