Garcia and the Political Safeguards of Federalism: Is There a Better Solution to the Conundrum of the Tenth Amendment?

Abstract

In Garcia v. San Antonio Metropolitan Transit Authority (1985), Justice Harry Blackmun held that the Tenth Amendment does not prevent the Congressfrom subjecting state and local governments to the provisions of the Fair Labor Standards Act, concluding that the political safeguards offederalism are generally adequate to protect state interests on the national scene. This article examines the intellectual foundations of the political safeguards offederalism andfinds them inadequate. It then surveys the post-Garcia scholarship to ascertain whether an alternative theory ofthe Tenth Amendment has emerged Concluding that it has not, the author suggests the needfor afresh approach in view of the hints contained in Justice Sandra Day O'Connor's opinion in Gregory v. Ashcroft (1991) thatfive justices may be ready to reexamine the central thesis of Garcia.