Federalism today 93Congress did not have the power under the commerce clause to make a national law
that gave victims of gender-motivated violence the right to sue their attackers in federal
court (the Court struck down only that part of the law, however; the program funding
remained unaffected and was reauthorized in 2013).^20
The impact of these cases goes well beyond setting limits on the federal government’s
ability to regulate commerce. Not only has the Supreme Court set new limits on Congress’s
ability to address national problems, but it has also clearly stated that the Court alone
will determine which rights warrant protection by Congress. However, it is important to
recognize that the Court does not consistently rule against Congress; it often rules against
the states because of broader constitutional principles or general public consensus behind
a specific issue. For example, the Court has struck down state laws limiting gay rights as a
violation of the equal protection clause of the Fourteenth Amendment.^21 And although the
Court rejected the commerce clause as the constitutional justification for national health
care reform, it did uphold the ACA based on Congress’s taxing power.^22
Even so, it’s important to keep in mind that the national government still has the
upper hand in the balance of power and has many tools at its disposal to blunt the
impact of any Court decision. First, Congress can pass new laws to clarify its legislative
intent and overturn any of the Court cases that involved statutory interpretation.
Second, Congress can use its financial power to impose its will on the states. However,
the Court has limited Congress’s powers of budgetary coercion. For example, in a 2012
case dealing with Obamacare’s requirement that states expand Medicaid coverage
in order to receive federal subsidies for the program, the Court ruled that the threat
embodied in this requirement was a “gun to the head,”^23 meaning states did not have a
real choice: without the subsidies, no state could afford to provide Medicaid coverage
on its own, even without the expansion in coverage. This was the first time the Court
limited Congress’s coercive budgetary power over the states, and the boundaries of the
new limits will have to be decided in future cases.The Lopez decision struck down the
1990 Gun-Free School Zones Act,
ruling that Congress did not have
the power to forbid people to carry
guns near schools. After the shooting
of 34 people at Marjory Stoneman
Douglas High School in Parkland,
Florida, on February 14, 2018, students
led renewed calls nationwide for
strengthening gun control laws.“Why
Should
I Care?”
Why is it important to understand federalism today? More than at any time in U.S.
history, the question of which branch of government has power over a particular
policy is up for grabs. This change gives elected officials new opportunities to
influence policy—rather than changing the policy itself, they can influence decisions
about which level of government implements the policy.Full_04_APT_64431_ch03_070-101.indd 93 16/11/18 1:30 PM