PUTTING THE BREAKS ON FEDERAL CONTROLS

A trio of related 5-4 decisions last week by the U.S. Supreme Court
could have implications for the broad power of state government
vis-a-vis the national government, and for specific cases pending,
including at least one involving California law.

Predicting the high court's future course on the basis of its current
decisions can be risky, of course. But these decisions can be viewed
as part of a recent long-term effort by a narrow majority to redress
the decades-long, virtually unchallenged growth of central government
power at the expense of the sovereign powers of state
governments.

The three cases were all a bit convoluted, but announcing them
together created a sense of drama and momentousness. In Alden v.
Maine, the court upheld a decision by the Maine Supreme Court denying
employees of Maine's state courts for overtime pay in accordance with
federal law rather than state law.

The other two cases, College Savings Bank v. Florida and Florida v.
College Savings Bank, grew from an effort by a bank in New Jersey to
sue in federal court the state of Florida for patent infringement for
offering a college-tuition certificate of deposit, which the bank
claimed was identical to its own investment method.

In all three cases, the court invoked the 11th Amendment to the U.S.
Constitution, which seldom has been an issue recently. It says that
"The judicial power of the United States shall not be construed to
extend to any suit in law or equity commenced or prosecuted against
one of the United States shall not be construed to extend to any suit
in law or equity commenced or prosecuted against one of the United
States by citizens of another state, or by citizens or subjects of any
foreign state." In short, federal courts can't intervene in state
court cases and state courts can reject such efforts.

DOCTRINE OF SOVEREIGN IMMUNITY

The Supreme Court ruled that, in conjunction with the doctrine of
sovereign immunity, which gives governments the right to reject
lawsuits against themselves, the 11th Amendment prevents citizens from
trying to use state courts to enforce federal laws. In so doing, the
Supreme Court invalidated a couple of laws Congress had passed that
authorized such lawsuits by citizens and interest groups.

"Congress has vast power but not all power," Justice Anthony M.
Kennedy wrote in the Maine case. "When Congress legislate in matters
affecting the states, it may not treat these sovereign entities as
mere prefectures or corporations. Congress must accord states the
esteem due to them as joint participants in a federal system."

Justice John Paul Stevens, in dissent, said the majority decision was
"much like a mindless dragon that indiscriminately chews gaping holes
in federal statutes" and that the court was harking back to a "brief
period of confusion and crisis when our new nation was governed by the
Articles of Confederation."

OTHER RECENT CASES

The court has grappled recently with several cases in which the powers
of state governments seemed to conflict with the powers of the central
government, and it often decided in favor of state powers. For
instance, the Supreme Court ruled that Congress couldn't force local
law enforcement officials to undertake background checks for
prospective gun purchasers to enforce the federal Brady Bill.

The court also ruled two years ago that the Safe and Gun-Free Schools
Act, which prohibited carrying guns within 1,000 yards of a school,
was unconstitutional because there was no evidence that such carrying
would involve interstate commerce, the only constitutional rationale
for making the rule a federal law. It was the first time since the New
Deal the high court had reprimanded Congress for an overly lenient
construction of the interstate commerce clause.

The court now has a dozen other cases pending with implications for
the delicate balance between the powers of sovereign states and the
powers of a central government in a federalist system and has already
accepted two for argument next year,

IMPACT ON MEDICAL MARIJUANA

We talked to Jonathan Emord, a Washington, D.C. constitutional lawyer
who wrote the brief for another case with special importance for
Californians. In Pearson v. McCaffrey, which the Washington, D.C.
federal district court should decide soon, Mr. Emord argues, on behalf
of a coalition of scientists, doctors and patients, that the federal
government cannot use federal law to invalidate state laws authorizing
the medical use of medical marijuana if there is no evidence that
furnishing marijuana to patients on the recommendation of licensed
physicians will involve interstate commerce.

"The seminal case Wednesday was Alden v. Maine," he told us. "It
clearly recognizes that states have the right to pursue traditional
functions of state governments that are not proscribed by the
Constitution, and that to invalidate their actions through federal law
is an invasion of their sovereignty. This amounts to an amazing
restoration of the original federal system." That suggests a favorable
decision in the Pearson case, he believes.

Others aren't so sure. Timothy Lynch of the Cato Institute, who sees a
back-and-forth pattern to recent decisions on federalism rather than a
trend toward trimming the power of the central government, says
Wednesday's decisions won't prevent federal officials from enforcing
federal laws against the medical use of marijuana within states that
have medical marijuana laws.

If these recent cases represent a trend, it's a healthy one. The
central government has increased its power dramatically in recent
decades, often by constitutionally dubious methods. If the high court
wants to shave that reach back a bit, more power to it.