Federalism Through a Global Lens: A Call for Deferential Judicial Review

Introduction

This article examines the effects of judicial review in federalism cases on governmental flexibility and creativity at the national level. It argues that the global era in which we now live and the New Deal of the 1930s and beyond have at least one thing in common, and that is a need for creative approaches at the federal level to perceived societal problems. New regulatory approaches often take the form of new mixtures of federal and state power, as well as new public and private partnerships. While it may seem ironic, some of the deferential constitutional interpretive approaches forged by the Supreme Court during the New Deal may be best suited for the political experimentation now necessary, if various levels of government and nonstate actors are to adapt successfully to the realities and demands of a global economy.

During the New Deal, we were coming to grips as a nation with the realities and societal needs of a national economy. Communications had become national, as had our transportation needs and capabilities. Commerce was now national, as were the markets for securities, labor, energy, and natural resources.¹ The Supreme Court initially struck down federal legislation seeking to regulate aspects of these national markets, as if any changes that were to occur had to conform to a vision of the economy formulated in terms of nineteenth century ideologies and technologies.² Eventually, with what we have come to refer to as the "switch in time that saved nine," an overreaching Supreme Court learned to respect the political experimentation that a majority of Congress believed was necessary.³ When it came to judicial review of the economic legislation of the New Deal, the Court developed an appropriately deferential rational basis test that it applied to these statutes. New Deal legislation easily survived such review.⁴ As a result of the application of this new deferential standard of judicial review, the Court essentially stayed out of the economic politics of the New Deal.⁵

Today, we are still learning how best to live with and, if possible, govern a global economy. A variety of questions confront us. How do we govern globalization? And what exactly is globalization? Is it a set of neoliberal socioeconomic processes that know few limits or boundaries and, like the markets that drive them, simply extend, in an inevitably linear fashion, over, through, and beyond the governmental structures of nation states? Or are these global processes capable of transformation or resistance at the national and local levels? Can citizens at the domestic level of governance not only resist these forces but transform them as well, by taking into account noneconomic values and concerns, such as those traditionally associated with the New Deal's social safety net—welfare, social security, health care, etc? How are the voices of citizens who favor such views to be heard, especially if these issues are increasingly left to the private sector?

Globalization can mean many things—from pure laissez-faire markets to the regulatory demands of the World Trade Organization (WTO). The kind of global perspective that lawmakers adopt will affect how they choose to resist or facilitate the changes that globalization appears to promote. It also will affect the way they use distinctions that once helped us to allocate power and sort out the responsibility for its exercise. Given the de-centered nature of the global state,⁶ however, and the ways in which the global economy now integrates itself throughout national economies, distinctions developed in the context of a national economy, distinctions such as public and private, state and federal, national and international, domestic and foreign, or local and global, no longer accurately capture or reflect the new power relationships to which these distinctions once applied. There is a tendency on the part of courts to treat changes in the allocation of what is public [End...