Federalism and the Court: Congress as the Audience?
In: The annals of the American Academy of Political and Social Science, Band 574, S. 145-157
ISSN: 0002-7162
The Supreme Court's revival of federalism as a limit on national power has roots, in part, in the court's mistrust of the national legislative process & its sense of institutional competition with Congress. To the extent that the Court is concerned about careless legislating, six rules of "care & craft" in drafting legislation are proposed for members of Congress to consider: develop a factual record, reflect the source of constitutional authority, tailor the statute to reach "national" & not "local" matters, consider the implications of decentralized enforcement for surviving constitutional challenges as well as for efficacy, consider whether state governments are treated comparably to the federal government, & be particularly cautious in efforts to overrule the effects of the Court's decisions. To the extent the Court is concerned with its own institutional prerogatives, however, or is committed to a categorical divide between areas constitutionally committed to the states & the federal government, care & craft alone will not be a solution. 28 References. Adapted from the source document.