Joondeph on The Other Side of Federalism: An Empirical Analysis of the Rehnquist Court's Preemption and Dormant Commerce Clause Decisions

Bradley W. Joondeph, Santa Clara University, has posted a new essay, The Other Side of Federalism: An Empirical Analysis of the Rehnquist Court's Preemption and Dormant Commerce Clause Decisions. Here's the abstract:

Most scholars agree that federalism was central to the Rehnquist Court's constitutional agenda. But there is a part of the federalism story that has been largely overlooked: the Court's decisions involving the structural constraints on state governments, the most significant of which are preemption and the dormant Commerce Clause. This article presents an empirical study of the Rehnquist Court's 77 decisions addressing these issues between October 1991 and June 2005. The study is partly qualitative, analyzing the Court's various doctrinal moves with respect to preemption and the dormant Commerce Clause, and partly quantitative, offering a statistical analysis of the justices' voting patterns. Both parts of the study demonstrate that, on this “union-preserving” side of federalism, the five justices most responsible for the Rehnquist Court's “federalism offensive” - Rehnquist, O'Connor, Scalia, Kennedy, and Thomas - were largely indifferent to state policymaking autonomy. If anything, they tended to push the law in the opposite direction, increasing the likelihood that state initiatives would be preempted or invalidated on dormant Commerce Clause grounds. What might explain this tension in the Rehnquist Court's federalism jurisprudence? An examination of the surrounding political context suggests that, in contrast to the broad support within the modern Republican Party for reigning in the federal government, there never developed a similar consensus to empower the states. Indeed, a variety of sources indicate that, when the two objectives conflicted, the modern GOP generally preferred the reduction of economic regulation to robust state autonomy. And this is precisely what the Rehnquist Court's preemption and dormant Commerce Clause doctrine decisions accomplished: They maintained or increased the constitutional restraints on the states' autonomy to regulate private businesses.