The Tenth Amendment after Garcia: Process-Based Procedural Protections

Abstract

Garcia v. San Antonio Metropolitan Transit Authority' is the most recent attempt by the United States Supreme Court to explicitly develop a workable balance between states' interests protected by the tenth amendment' and the power of Congress to regulate interstate commerce under the commerce clause.3 This Comment's initial examination of Garcia in the context of earlier caselaw is designed to establish the parameters of the subsequent proposal; it is not preparatory to a discussion of subjects outside the scope of earlier debate. Additional analysis reveals that Garcia neither abandons limitations on congressional exercise of the commerce power nor proposes abstention from judicial review in this area. Garcia merely requires process-oriented' justifications for judicially-imposed safeguards. Much of the scholarly literature discussing Garcia has responded to this call for process justifications. Process jurisprudence, originating in the Carolene Products footnote, has been adapted to define and protect the role of states in our federal system. In addition, commentators have made various proposals for specific safeguards of state interests which, consistent with Garcia, are grounded in process concerns. Unfortunately, proposals to erect substantive limits to congressional power seem to ignore Garcia's primary emphasis on procedural protections, and the suggested procedural safeguards lack adequate exposition and means of enforcement. Building on several of these recommendations, this Comment outlines a proposal for a procedural safeguard of state interests. This proposal is limited to congressional legislation that is based on the commerce power, regulates the states, and represents the initial intrusion