Terror could tilt high court on states rights

Two cases could signal whether Sept. 11 has affected key trend of Rehnquist years.

The Sept. 11 terror attacks may bring down more than the twin towers of the World Trade Center and a section of the Pentagon. They are now reverberating in the marbled halls of the US Supreme Court.

Law scholars are debating whether the war on terrorism may prompt the high court's conservatives to rethink seven years of constitutional precedents aimed at reordering the balance of power between the states and the national government.

Faced with a threat from Osama bin Laden and his allies, the US can no longer afford the luxury of a high-stakes experiment in resurgent federalism, according to many liberal analysts. Conservatives counter that such views are mere wishful thinking.

But as the court gears up to hear two federalism cases later this month, constitutional law scholars are watching closely for any signs of change.

Under Chief Justice William Rehnquist, one of the Supreme Court's most controversial developments has been its endorsement of a states-rights agenda, striking down congressional enactments that it sees as invasive of the realm of the states.

In pursuing this agenda, the court's five-member conservative wing has launched a direct challenge to the growing centralization of authority in Washington. It is the first high court to take such a stand since the New Deal.

The advisability of tinkering

But now, in the wake of the hijack-suicide attacks and anthrax mailings, some analysts are questioning whether the court will continue to tinker with the structure of American government.

"To the extent that the level of terrorism directed at the United States on US soil remains an important question, I would not be surprised to see it affect how the court thinks about some of these federalism issues," says Vicki Jackson, a constitutional law professor and federalism expert at Georgetown University Law Center in Washington.

The issue is significant because it could mark the last whimper of the Reagan revolution against big government.

Conservative analysts counter that the real lesson of Sept. 11 is that such successful surprise attacks point up the danger of a national government that tries to do too much, rather than focusing on those few critical missions assigned to it by the nation's Founding Fathers. Chief among those missions, they say, is to protect the US from foreign threats.

In the view of the high court's conservative wing, the governmental structure designed by the Founding Fathers was intended to foster competition between dual sovereigns rather than subservient states seeking instructions and handouts from Washington. It was to be a national government of limited powers, the justices have written.

"We've strayed a long way from the notion that government is limited," says Martha Derthick, a retired professor of government at the University of Virginia and author of "Keeping the Compound Republic: Essays on American Federalism."

But Professor Derthick says the court is not about to abandon what it views as a principled stand on federalism. "I don't see why terrorism would have any effect on the court's constitutional logic," she says. "I think the same 5-to-4 majority will decide those same [federalism issues] the way they did before."

On Feb. 25, law scholars will have their first opportunity since the attacks to see the justices in action on two federalism cases set for oral argument. Both involve attempts by state governments to claim sovereign immunity from compliance with federal laws.

What's in dispute

One case involves a dispute between South Carolina and the Federal Maritime Commission over whether the state violated federal discrimination laws by refusing to allow a gambling boat access to state-run harbor facilities. In the other case, the court will decide whether the board of regents of the University of Georgia waived its 11th Amendment immunity when it sought to move a discrimination lawsuit from state to federal court.

While both cases could, in theory, cut back national power in relation to the states, such a development would be unlikely to affect the national government's ability to wage war on terrorists, some analysts say.

Robert Nagel, a law professor at the University of Colorado and author of the "Implosion of American Federalism," says he does not expect the war on terrorism to force the court to take a different view in such 11th Amendment cases.

But Professor Nagel says the court's current states-rights reputation is overrated. In its abortion cases, for example, the high court has repeatedly endorsed a nationalist solution to an issue that many conservatives believe should be resolved within the exclusive domain of the states.

Nagel says the court's federalism jurisprudence mostly affects only the edges of power, and is more symbolic than real. Should the court confront a case that directly implicates national and state power in a way that affects all Americans, the court would side with nationalists, he says.

"I think it was a nationalistic court that will become more so," he says. "The war on terror is one more of a large number of very pervasive social and political factors that are inducing increased centralization."

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