Next month, when it comes back for the fall term, the Court will return to the same turbulent waters in the case of Sprietsma v. Mercury Marine, a clash over product liability. What the justices will be deciding is this: When manufacturing safety standards conflict, which ones take precedence, the ones written in Washington or the ones that come out of a state legislature?
Kettl notes that the stakes in these court collisions are growing higher all the time, and argues that at some point there will be a winner and a loser, and the likely loser is the states.
I don't really disagree with that, but I'd place the emphasis elsewhere: on the sheer number of federalism-shaping lawsuits that now reach the highest court for decision. What this development says to me is that Congress has been evading its constitutional responsibility, blithely passing laws and writing regulations without much real thought about who should or does have primary authority to enforce them.
The evidence of the evasion is all around us. This summer, for example, Congress approved "fast-track" trade power for the President, giving him virtual carte blanche to make negotiating moves with real implications for state licensing and regulatory authority, not to mention state economies, public health and the environment. Yet there's no specific provision for taking state interests into consideration under fast track; the states will have to count on their unsteady partners in Congress to look out for their interests.
Meanwhile, as Congress debates creation of a new Department of Homeland Security--an issue with profound intergovernmental ramifications--the sticking point isn't which level of government will have jurisdiction over which activities--it's whether employees of the new department will be covered by civil service.
In the absence of clear legislative rules about who should be doing what, states take the actions they feel they have to take. They write laws that they consider necessary to the economic and social well- being of their citizens, whether the subject is product liability for boat-makers, or auto emissions, or the high cost of prescription drugs. A few years down the road, the whole mess ends up in the Supreme Court.
Take the aforementioned Sprietsma case. The plaintiffs charge Mercury Marine with negligence for not installing guards on all its propeller products, and argue that their case should proceed in state court, along the lines of the typical product-liability case. Mercury counters that state liability law is preempted by the Federal Boat Safety Act, which anoints the U.S. Coast Guard purveyor of all things related to boating safety. This one could have been over a long time ago if Congress had written a few paragraphs into law making more explicit the degree of control it wanted the Coast Guard to have, but no such language exists.
So it is up to the nation's highest court to figure out whether federal law preempts state law on this issue, and if so, how much relevance that should have to the broader question of when such preemptions should be assumed, and when they shouldn't. As Michael Greve of the American Enterprise Institute pointed out in a recent paper, the court hasn't exactly been crystal clear itself on this point, Some days, and in relation to some laws, the justices seem to feel that Congress meant to preempt state authority--even absent specific language in the law stating that. Other days, the court finds itself unable to divine such intentions.
This may seem inevitable, but it isn't. Every federal law with intergovernmental implications needn't be vetted through long, painful and expensive legal battles. Every state law that seems to tread on the toes of interstate commerce or civil rights needn't be the fuse for another court fight.
It is possible to hash these issues out beforehand, and that used to be the job of the Advisory Commission on Intergovernmental Relations, the consortium of federal, state and local officials that weighed in regularly on a wide variety of public policy proposals while they were under debate in Congress.
Congress de-funded the ACIR in the fall of 1996, and it went out of business. In its place, we now have nine Supreme Court justices who by default handle that sifting of responsibility on a retroactive basis. The justices may derive some intellectual stimulation or even pleasure from sorting out these problems, but it makes for a nerve-wracking legal and policy-making environment, one that portends to shift, as Don Kettl rightly says, with every new case and every new justice.
It is highly unlikely, of course, that Congress will come back to its senses on this one. But now, more than ever, the country seems to need a single clear voice on intergovernmental issues. For about $1 million a year, federal lawmakers could revive the ACIR, and it would be a bargain indeed.
