Maurice A. Deane School of Law at Hofstra University Scholarly Commons at Hofstra Law Hofstra Law Faculty Scholarship 1992 Federalism, the Commerce Clause, and Equal Protection Leon Friedman Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship Recommended Citation Leon Friedman, Federalism, the Commerce Clause, and Equal Protection, 9 Touro L. Rev. 363 (1992-1993) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/221 This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. FEDERALISM, THE COMMERCE CLAUSE, AND EQUAL PROTECTION Hon. Leon D. Lazer: It is now my pleasure to introduce another constitutional authority whose opinions are held in high regard and who is cer- tainly a first-class scholar, Professor Leon Friedman of Hofstra University. He is a lecturer at the Federal Judicial Center on Civil Rights, co-editor of the volume "Justices of the United States Supreme Court," 1 and he is going to speak to us about a whole series of cases that do not fit easy categorization. ProfessorLeon Friedman: I did not think I would be hearing so many praises of Justice O'Connor, but I am going to be doing the same thing in another moment. This afternoon, I am going to talk about an important federalism case2 and some Commerce Clause cases, 4 all of which bear directly on the way in which state and local govern- ments operate. I would like to start out with a few batting averages, in terms of what the Supreme Court did last year. The Court found, par- ticularly in the area of federalism, one federal law unconstitu- tional. 5 As I add up my running total, from Marbwry v. Madison6 1. LEON FRIEDMAN & FRED L. ISREAL, THE JUSTICES OF THE SUPREME COURT (1969). 2. New York v. United States, 112 S. Ct. 2408 (1992). 3. U.S. CONST. art. I, § 8, cl. 3. The Commerce Clause provides: "The Congress shall have the power... [tio regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes." Id. 4. Kraft Gen. Foods v. Iowa Dep't of Revenue, 112 S. Ct. 2365 (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resources, 112 S. Ct. 2019 (1992); Chemical Waste Management v. Hunt, 112 S. Ct. 2009 (1992); Quill Corp. v. North Dakota, 112 S. Ct. 1904 (1992); Wyoming v. Oklahoma, 112 S. Ct. 789 (1992). 5. New York v. United States, 112 S. Ct. at 2428-29. 6. 5 U.S. (1 Cranch) 137 (1803). 363 364 TOURO LAW REVIEW [Vol 9 7 to today, the Court has found 129 federal laws unconstitutional. Prior to the 1991-92 Term, the Court would often invoke the First Amendment 8 or the Fifth Amendment9 in order to find laws unconstitutional. 10 It has been some time since the Court has found a federal law unconstitutional on Tenth Amendment11 grounds. 12 However, that is indeed what the Court did during this Term. 13 In addition, the Supreme Court found fifteen state laws un- constitutional. 14 Five state laws were found unconstitutional on 7. CONGRESSIONAL RESEARCH SERVICE LIBRARY OF CONGRESS, THE CONSTITUTION OF THE UNITED STATES ANALYSIS AND INTERPRETATION, S. Doe. No. 101-36, 101st Cong., 2d Sess. 239-42 (Supp. 1990). 8. U.S. CONST. amend. I. The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Id. 9. U.S. CONST. amend. V. The Fifth Amendment provides: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Id. 10. Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480 (1985) (federal restriction on political committee expenditures implicated Free Speech and Freedom of Association Clauses); Califano v. Westcott, 443 U.S. 76 (1979) (gender classification enumerated in Social Security Act violated Due Process Clause of Fifth Amendment). 11. U.S. CONST. amend. X. The Tenth Amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Id. 12. National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). 13. See New York v. United States, 112 S. Ct. 2408 (1992). 14. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992); Planned Parenthood of Southeastern Pa. v. Casey. 112 S. Ct. 2791 (1992), Lee v. International Soc'y for Krishna Consciousness, 112 S. Ct. 2709 (1992); 1993] FEDERALISM, COMMERCE CLAUSE & 365 EQUAL PROTECTION First Amendment grounds 15 and three state laws were struck down on preemption grounds.16 The Court also found one state law unconstitutional on Fourteenth Amendment1 7 groundsl 8 and one state law unconstitutional on Fifth Amendment grounds. 19 Finally, in the cases I will discuss this afternoon, the Supreme Court held that five state laws violated the Commerce Clause. 20 According to my scoreboard, from 1789 to 1992, the United States Supreme Court struck down as unconstitutional 2,112 local laws.2 1 In other words, there is a sixteen-to-one ratio between the Supreme Court striking down federal laws as compared to state laws. This reminds me of Oliver Wendell Holmes' statement re- garding Marbury v. Madison and Martin v. Hunter's Lessee.22 He said: "I do not think the United States would come to an end Cipollone v. Liggett Group, Inc., 112 S. Ct. 2608 (1992); R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992); Forsyth County v. Nationalist Movement, 112 S.Ct. 2395 (1992); Gade v. National Solid Wastes Management Ass'n, 112 S.Ct. 2374 (1992); Kraft Gen. Foods v. Iowa Dep't of Revenue, 112 S. Ct. 2365 (1992); Morales v. Trans World Airlines, Inc., 112 S. Ct. 2031 (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resources, 112 S.Ct. 2019 (1992); ; Chemical Waste Management v. Hunt, 112 S. Ct. 2009 (1992); Quill Corp. v. North Dakota, 112 S. Ct. 1904 (1992); Wyoming v. Oklahoma, 112 S.Ct. 789 (1992); Norman v. Reed, 112 S.Ct. 698 (1992); Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 112 S. Ct. 501 (1991). 15. Lee, 112 S. Ct. at 2709; R.A. V., 112 S.Ct. at 2538; Forsyth, 112 S. Ct. at 2395; Norman, 112 S.Ct. at 698; Simon & Schuster, 112 S. Ct. at 501. 16. Cipollone, 112 S. Ct. at 2608; Gade, 112 S. Ct. at 2374; Morales, 112 S. Ct. at 2031. 17. U.S. CONST. amend. )IV, § 1, cl. 2. The Due Process Clause states: "No State shall ...deprive any person of life, liberty, or property, without due process of law.... ." Id. 18. Casey, 112 S. Ct. at2791. 19. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992). 20. Kraft Gen. Foods v. Iowa Dep't of Revenue, 112 S.Ct. 2365 (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resources, 112 S. Ct. 2019 (1992); Chemical Waste Management v. Hunt, 112 S. Ct. 2009 (1992); Quill Corp. v. North Dakota, 112 S. Ct. 1904 (1992); Wyoming v. Oklahoma, 112 S.Ct. 789 (1992). 21. S.Doc. No. 101-36, supra note 7, at 243-59. 22. 14 U.S. (1 Wheat) 304 (1816). 366 TOURO LAWREVIEW [Vol 9 if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States."23 This relates precisely to questions of uniformity of federal and state laws throughout the country. I. FEDERALISM Now let me turn to some specific cases because there were a couple of eyebrow-raisers during this Term. I think the most in- teresting case in the area of federalism, notably, state governmen- tal control, is New York v. United States.24 This case dealt with the Low-Level Radioactive Waste Policy Amendments of 1985.25 At issue was the disposal of low-level radioactive material such as "luminous watch dials, smoke alarms, measurement devices, medical fluids, research materials, and the protective gear and construction materials used by workers at nuclear power plants." 26 The federal government gave the states many oppor- tunities to deal with the disposal of this material, but the states were not interested in dealing with it.27 This was a classic case of "not in my backyard."28 For instance, only three states operated low-level radioactive waste disposal sites: Nevada, Washington, and South Carolina.