Problem: The Constitution and the New Federalism

After decades of interpreting the Constitution in a flexible, expansive manner that accorded great power to the federal government, the Supreme Court in the mid-1990s revisited the federal-state balance of power with some decisions curbing federal authority. No major federal initiative was struck down, but the Court signaled legislators and lower courts to look more closely at the federal-state level. The new federalism expressed itself in a landmark 2013 U.S. Supreme Court decision, Shelby County v. Holder,10 that challenged the constitutionality of the federal Voting Rights Act of 1965 which, among other things, subjected nine mostly southern states to federal supervision of their election processes because of a long history of discrimination against minorities in voting practices. Those states often gerrymandered election districts and imposed "voter integrity" rules (e.g., literacy tests, character standards, and onerous identification requirements) that officially were designed to assure honesty in elections, but often had sought to exclude minorities from voting. Under the 1965 act any change to voting rules in the covered states required "preclearance" from the federal government. Shelby County, Alabama, challenged the Voting Rights Act, claiming, in brief, that in reauthorizing the act in 2006, Congress exceeded its constitutional authority and in so doing violated state and local rights.

By a 5-4 vote, divided on familiar conservative-liberal grounds, the Supreme Court ruled for Shelby County saying that Section 4(b) of the act, determining which jurisdictions' voting practices were tainted by discrimination and thus required pre-clearance, was based on 40-year-old discrimination data and thus did not necessarily speak to current conditions. The Supreme Court acknowledged the effectiveness of the act in reducing voting discrimination, but said that discriminatory practices and the states that use them have changed and Congress must keep the law up to date. The act and its supporting data can, of course, be revisited, but given Congress's current fractures, analysts do not expect quick action. A number of southern states rushed to enforce or enact new restrictions on voting following the Shelby County decision. In response, Attorney General Eric Holder in 2013 filed a federal suit asking that Texas get federal permission before making election law changes over the next 10 years.11 Like the voting rights struggle, we are in the midst of a furious immigration dispute pitting global federal control versus individual states that want to address their specific problems through their own legislation. On the other side of the coin, when a state like California, known for its aggressive rules on workplace safety, consumer protection, and environmental quality, imposes new restrictions, the business community may fight back in Washington, D.C. by seeking federal laws to make uniform rules for all the states, thus restraining or preempting California's protective measures. 12

Question

California rules, for example, prohibit the sale of eggs laid by hens confined to very small cages. What issues would you cite if Congress were to respond to the California standards by considering new federal rules?