Consequences of the Rehnquist Court's Federalism Decisions for Congressional Lawmaking

Abstract

Scholars generally agree on the doctrinal significance of the Rehnquist Court's post-1990 federalism decisions, but there is less agreement about the consequences of these decisions. A previous study examined the direct consequences of these decisions, by inquiring into the extent to which Congress was able to revise and reenact statutes that were struck down by the Court, but it left unexamined the effects on Congress's ability to legislate in other areas. This article assesses the indirect consequences of these decisions by tracing their effects on the drafting of and debate over bills other than the ones directly invalidated by the Court. It turns out that these decisions have had only a limited effect on Congress's ability to draft constitutionally acceptable legislation, but they have had an important effect on the debate over the passage of several pieces of legislation, whether by handing opponents arguments to oppose the bills or by providing members of Congress with means to explain voles that would otherwise be difficult to defend. Copyright 2004, Oxford University Press.