Anti-Discrimination Law and Federalism

(I have been trying to blog for a few days. I've been writing one of my long posts on "an area of law for you to consider," and I kept abandoning it and returning to it. I wanted to write about Feminism and Federalism, but I found that I couldn't do it without explaining what federalism was, and how it related to anti-discrimination law in general. I didn't even get to writing about gender issues in federalism law, and already I was writing paragraphs and paragraphs. So consider this Part 1 of 2, and the feminism-related post be posted shortly.)

This post is in part inspired by Dan Solove's meditations on "Data Security Laws, the States, and Federalism":

Several bills were proposed in Congress; many Senators and Representatives quickly emphasized the importance of privacy and data security. And after all this time, what has Congress produced? Nothing. Meanwhile, the states have been very busy. 31 states have passed data breach notification laws. 24 states have now passed credit freeze laws, which allow people to lock their credit files to prevent unauthorized activity.

I never used to be a fan of federalism, but in following information privacy law, I've found that the states are by far more responsive to problems, more flexible and experimental in solutions, and more able to get things accomplished. Substantively, the states have also established a better balance between privacy and business interests than Congress.

Increasingly, I've really warmed up to federalism. It's great to have a federal rule when it is one you agree with, but not so great when you don't like it and it undoes your state's better laws.

Well, I am a big fan of federalism. So I liked this post for showing how interesting and relevant federalism is to all areas of law. I can't speak for Dan Solove, but what got me hooked in the first place way back in college when I did my senior thesis on the Rehnquist Court's "Devolutionary" federalism was this basic realization: "hey, I always thought this area of law was boring, arcane, and irrelevant, but now I kind of see how it affects me." And while it may appear that I'm abandoning my race-conscious anti-subordination law training, I've found that in researching federalism issues I've learned a lot about civil rights laws (the constitutional justification for which is in the Commerce Clause), gender rights issues, and state initiatives in immigration law.

So what is federalism? Well, broadly speaking as a "neutral" principle, federalism is the appropriate allocation of authority between our federal government, on the one hand, and the state, regional, and local governments on the other. That's the "neutral principle" version. Take away that "neutral" description, and you have arguments for and against a state/regional/local conception of federalism that insists on broader state authority within the federalism regime (a more "states-rights" approach); or you have arguments for and against a more centralized, supra and superceding conception of federal government authority and power. There is indeed such a thing as "libertarian federalism," which rejects both state and federal governmental assertions of authority over private actors. I tend to favor big government particularly with respect to anti-subordination and environmental protection laws--nothing beats the normative and transformative power of a federal regulation, not to mention the federal enforcement and funding resources, to correct discrimination, provide federal causes of action and remedies, and to regulate both private and public actors in the areas of environmental pollution. But in the absence of federal regulation, or in the presence of what I consider to be "bad" federal regulation, I with Dan Solove--I like the states to step in with their own original initiatives and regulatory experiments.

But how does federalism relate to feminism? Well, it's one of the reasons I grew to be really interested in federalism, actually. I was, after all, a feminist activist in college. And in my senior year, I was writing my senior thesis on the Rehnquist Court's state-centrist, "devolutionary," "Constitution-in-Exile" federalism that invalidated acts of Congress that were intended to prohibit guns near schools (U.S. v. Lopez) or to provide federal civil remedies for victims of gender-motivated violence (Morrison). . And at the same time, I was an undergraduate teaching assistant for a course in Jurisprudence (mostly American), and the previous term, in 2000, U.S. v. Morrison had been decided, and my professor and I taught the case from a feminist legal theory perspective. So while it may seem that I've recently abandoned my anti-discrimination law and Critical Race Theory training, I don't feel like I have. It's just a continuation of my legal and political education since college, and I learn a lot about anti-discrimination law, environmental law, and gender issues in the law through my research in federalism.

You cannot learn about anti-discrimination law without learning about federalism. Notice how state government offices identify themselves as equal opportunity employers? Notice that "Whites Only" signs are largely a thing of the past? Notice how people of all races and religions can stay at the Holiday Inn or eat at the Wendy's in any state? It wasn't always that way. So how is it that Congress has the power to prohibit discrimination by state actors (including state governments, public universities, state-owned and operated companies) and private actors whose market participation is large enough to "substantially effect" interstate commerce. That's right, interstate commerce. Those wonderful legal changes (the 1964 and 1991 Civil Rights Acts) allowing you and me and that dude over there to eat at Wendy's find their constitutional authority in the commerce clause of the constitution. There's actually a convoluted reason for this, mainly some cases from the 18oos called, ironically, the Civil Rights Cases, that made a distinction between public and private discrimination, and created a "state-action doctrine" that held that Congress lacked the constitututional authority under the enforcement provisions (Section 1, 5) of the Fourteenth Amendment to outlaw racial discirmination by private individuals and organizations. Congress only had that power (through the "incorporation" of the Bill of Rights through the 14th) with respect to state and local governments.

So how to get around that constraint without overruling a precedent and getting lost in a "slippery slope" (if we regulate private behavior, when does such regulation end?) of potentially too much regulation? Go for the loophole. The commerce clause gives Congress the authority "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." You wouldn't read these words and think "civil rights," but that is how the Civil Rights Act accomplished its goals of integration in places of "public accommodation," the idea being that hotels and restaurants that receive much of their visitors/goods through interstate commerce thus use the channels/instrumentalities of interstate commerce and may be regulated by Congress. So Title II of the 1964 act broadly prohibited discrimination on the basis of race, color, religion or national origin in any "place of public accommodation...if its operations affect commerce." This includes all hotels, motels, and restaurants taht "offers to serve interstate travellers or a substantial protion of the food in which it sells has moved through commerce." (Heart of Atlanta Motel v. U.S.)

This is not so far fetched a theory--much evidence was offered during the 1950s-60s that demonstrated the depressive economic impact of segregation--Black families were forced to alter their driving routes in order to eat/rest at restaurants and hotels that would serve them. There are very few large hotels and restaurants that can claim not to use the channels/instrumentalities of interstate commerce--think of Florida oranges, Texas beef, Napa Valley wine, etc. etc. And you cannot really get around it by "buying local," if the effect of buyig local products affects teh national market. So the idea has been, from roughly 1937-1995, that Congress has broad Commerce Clause powers to regulate the states and private actors, and such power may be used to achieve all sorts of goals, from anti-discrimination to environmental regulation (think: endangered species whose pelts/skins are valuable in the national market) to drug policy (remember: Gonzales v. Raich and the whole medical marijuana thing). It's actually really complicated, the whole commerce clause revolution from there and back again--a topic for another day. But though the Rehnquist Revolution's progression towards a state-centrist, judicial curtailing of Congressional power may be retreating a bit after Raich, it makes me no less nervous about the the future of the federalism debate and how it impacts anti-discrimination law and gender issues.