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The judicial trend of diminishing deference to Congress’s power to find facts and then legislate pursuant to those findings deeply concerns many on the Article I side of government.1 To be sure, courts must be able to assess –with total independence–when and where Congress has exceeded its constitutionally authorized powers. Indeed there have been times in our history when the courts have been the bulwark against Congress’s efforts to undermine constitutionally protected rights. However, in recent years the judiciary has abrogated Congress’s powers to a troubling degree. Starting with United States v. Lopez, the guns in school zones case, running through United States v. Morrison, the Violence Against Women Act case, and including Board of Trustees of the University of Alabama v. Garrett, the disability discrimination case, the courts–most significantly the Supreme Court–have steadily eroded Congress’s power to legislate, with the effects felt and often suffered across the nation.

While some recent decisions have fairly noted Congress’s failure to establish a nexus between a piece of legislation and a source of congressional power, several of the cases, of the new-federalism jurisprudence ilk, ignore serious, studied, and diligent efforts by Congress to make the necessary findings and establish a proper constitutional exercise of power. Congress holds hearings–for some laws, years’ worth of hearings–and takes testimony from citizens, academics, state lawmakers, state attorneys general, and an array of other interested parties. In passing many laws that the courts have then struck down on federalism grounds, Congress has specifically solicited input–and received a green light –from the states on whether there is a need for the national legislature to act. Generally, actions of the Congress do not attempt to violate or weaken states’ .  .  .

Endnotes

• 1This paper is taken from a talk given at the 1857th Stated Meeting of the American �����Ƶ of Arts and Sciences held on March 21, 2002.