Constitution Daily

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Supreme Court establishes a broad new protection for states’ independence

May 14, 2018 by Lyle Denniston


In a broad reaffirmation of the constitutional idea that Congress cannot order state governments to carry out federal policies, the Supreme Court on Monday went further than it has done in the past to shore up states’ sovereign powers.   It did so as it struck down all parts of a 1992 federal law passed to stop the spread of betting on sports.

The decision could have a significantly wider impact than turning states loose to permit sports gambling or to operate it themselves; it at least raised doubts about the Trump Administration’s power to compel states and cities to help enforce tight federal immigration restrictions – now being resisted by the so-called “sanctuary” jurisdictions, and about the power of the federal government to stop states from allowing medical or even recreational use of marijuana.

The law at issue, the Court’s main opinion said, put state legislatures “under the direct control of Congress.  It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals.  A more direct affront to state sovereignty is not easy to imagine.”

The ruling produced a split in the Court, but the 7-to-2 result on the main part of the decision brought stronger support for states’ independence than had emerged in the Justices’ two best-known rulings on this question: a 6-3 result in 1992 and a 5-4 outcome in 1997 – supposedly the high points in a modern states’ rights revival.

Monday’s decision, settling a fight that had raged for years between the federal government and the state of New Jersey over casino gambling on sports, did not take away Congress’s power to regulate sports betting if it wished to do so directly.  Nor did it impair Congress’s authority to put up federal money to induce states to curb such gambling.

What it did do, and did very clearly, was to tell Congress that it may not adopt a policy that it wants to initiate and then give state governments orders requiring them to implement that policy by passing state laws even if the states would rather not do so.   Congress, it stressed, must take the responsibility itself if it wishes to enact federal policy.

Thus, the decision reinforced and even widened the constitutional notion that the Court has called the “anti-commandeering principle” – that is, a declaration that the national government simply cannot force states to stand in for federal officials as enforcers of federal policy choices.

For the first time, the Court explicitly rejected an argument that Congress violates that principle only if it coerces states into taking an explicit, affirmative action to enforce a federal requirement – the kind of compulsion that was forbidden by the 1992 and 1997 decisions.  Congress, the new ruling emphasized, cannot command the states not to approve a policy that is different from what Congress wants.

The Constitution’s Supremacy Clause, which gives federal laws dominance over state laws that cover the same subject, does not operate to enlarge Congress’s power to pass laws dictating how state governments must act under a federal program, the decision said.

The ruling, with the main opinion by Justice Samuel A. Alito, Jr., drew the support not only of the Court’s more conservative members, but the unqualified support of one of its more liberal Justices – Elena Kagan.  The main points also gained the support of another one of the more liberal Justices, Stephen G. Breyer, although he would have saved one part of the law rather than nullifying every part of it.

The decision voided the part of the sports betting law that told states they could not pass laws authorizing such gambling, and also invalidated the part that barred states from giving permission for private parties to engage in such betting.

Besides Alito and Kagan, the main opinion had the full support of Chief Justice John G. Roberts, Jr., and Justices Neil M. Gorsuch, Anthony M. Kennedy and Clarence Thomas. 

The Justices who most often cast votes in favor of liberal views – Ruth Bader Ginsburg and Sonia Sotomayor – dissented, arguing that the majority had gone too far in striking down all parts of the federal law.  The dissenters did not express their view on the main issue over state sovereignty

Justice Thomas, while supporting the main opinion in full, also wrote a separate opinion speaking for himself alone.  He urged the Court at some point to reconsider its long-standing practice of salvaging some parts of a law when it decides to strike down other parts.  Thomas appears to be of the view that, once any part of a law is ruled invalid, the law simply cannot be enforced at all.

In a broader sense, Monday’s decision harkened back to an era that went by the label “New Federalism,” when conservative advocates began gaining renewed support for the idea that the U.S. Constitution actually embraces “dual sovereignty” – ultimate power in some areas that the basic document assigns explicitly to the national government, and ultimate power to the states in all areas not specifically handed to the national government.

That era began in the years when Warren E. Burger was the Chief Justice, following the era when the Court led by Chief Justice Earl Warren had broadly expanded federal authority, especially in the field of civil rights.  In the Burger years, the chief proponent of new recognition for state sovereignty was Justice, and later Chief Justice, William H. Rehnquist.

Later, the leadership on that cause was taken up by Justice Sandra Day O’Connor and, more recently, by Justice Kennedy.  Monday’s ruling showed even wider support for the notion.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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