Federal Jurisprudence: The Opinions of Justice O'Connor
CRS Report for Congress
Federalism Jurisprudence: The Opinions of
Justice O’Connor
Kenneth R. Thomas and Todd B. Tatelman
Legislative Attorneys
American Law Division
Summary
Justice O’Connor has joined the majority of the Court on many important decisions
which resulted in limits on federal power. In majority opinions regarding the Tenth
Amendment, sovereign immunity, and the power of Congress under the 14th
Amendment, she has emphasized the dictates of the Founding Fathers and noted the
policies underlying federalism such as the promotion of state accountability.
During the 1990s, the Supreme Court issued a series of 5-4 opinions regarding
federalism and the limits of federal power. These cases dealt with issues such as the Tenth
Amendment, the Commerce Clause, sovereign immunity, and § 5 of the 14th Amendment.
Justice O’Connor was in the majority in most of these cases, and wrote significant
opinions in several of them.1 When Justice O’Connor was in dissent, such as when the
Court considered Congress’ Spending Clause power, it was generally to advocate for a
more limited federal role. Prior to her service on the Court, Justice O’Connor served as
a state assistant attorney general, a state legislator, a state trial court judge and a state
appellate judge. These experiences appear to have given her a high degree of trust in state
governments and courts.2
The Tenth Amendment
The Tenth Amendment provides that “powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are reserved to the States respectively,
or to the people.” Prior to Justice O’Connor’s service on the Court, the Court had decided
in National League of Cities v. Usery,3 that the Tenth Amendment and aspects of state
1 Erwin Chemerinsky, Justice O’Connor and Federalism, 32 McGeorge L. Rev. 890 (2001).
2 Stephen J. Wemeil, O’Connor: A Dual Role: Introduction, 13 Women’s Rts. L. Rep. 129, 131
(1991).
3 426 U.S. 833 (1976). In Usery, the Court struck down generally applicable federal wage and
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Congressional Research Service ˜ The Library of Congress
sovereignty limited the application of generally applicable federal laws to certain "core"
state activities. Ten years later, however, in a 5-4 decision, the Court overruled National
League of Cities in Garcia v. San Antonio Metropolitan Transit Authority.4 Justice
O’Connor authored a dissent in that case in which she emphasized the Founding Father’s
preference for two levels of governance with independent sovereignty.5
Over time, the Court turned to the different question of whether the Tenth
Amendment limits the federal government from using the machinery of the state
government to regulate state citizens. In a dissent in FERC v. Mississippi,6 which
predated Garcia, Justice O’Connor first raised the suggestion that Congress could not
compel states to undertake certain legislative or administrative actions.7 She argued that
this power was not contemplated by the Founding Fathers8 nor was it consistent with the
policy principles underlying federalism.9 These same themes were evident when Justice
O’Connor authored her majority opinion in New York v. United States.10
In New York, the Congress provided that states must develop legislation on disposal
of privately held low-level radioactive waste generated within the state, or the state would
be forced to take title to such waste, which would mean that it would become the state's
responsibility to dispose of it. The Court found that, although Congress had the authority
under the Commerce Clause to regulate low-level radioactive waste, it only had the power
to regulate the waste directly. Here, in effect, Congress had sought to “commandeer” the
legislative process of the states.
Justice O’Connor’s opinion, which commanded a 6-3 majority, found that this
power was not found in the text or structure of the Constitution, and thus the statute was
a violation of the Tenth Amendment. She emphasized that the Founding Fathers had
specifically contemplated that Congress would exercise legislative authority directly upon
3 (...continued)
price controls as applied to state employees.
4 469 U.S. 528 (1985). Justice Blackmun's opinion for the Court in Garcia concluded that the
National League of Cities test for "integral operations" in areas of traditional governmental
functions had proven impractical, and that the Court in 1976 had "tried to repair what did not
need repair."
5 Justice O’Connor noted that the powers delegated to the United States were "few and
defined,”and that the true "essence" of federalism is that the “States as States have legitimate
interests which the National Government is bound to respect even though its laws are supreme.”
Id. at 582 (J. Connor, dissenting).
6 456 U.S. 742 (1982).
7 In FERC, state energy regulatory authorities were required under the Public Utilities Regulatory
Policies Act of 1978 to consider Federal Energy Regulatory Commission proposals, although it
did not require the states to adopt them. 456 U.S. at 746-49.
8 456 U.S. at 791-797.
9 456 U.S. at 778.
10 505 U.S. 144 (1992).
individuals without employing the states as intermediaries.11 She further emphasized the
inherent wisdom of this, which is that to do otherwise would frustrate democratic
accountability, as voters would hold a state accountable for regulation mandated by the
federal government.12
The doctrine established in New York was extended in the case of Printz v. United
States.13 Printz considered the constitutionality of the Brady Handgun Act, which required
state and local law-enforcement officers to conduct background checks on prospective
handgun purchasers. Justice O’Connor did not author the 5-4 opinion, but she joined the
majority opinion, which built on the themes found in New York. This time, the Court
struck down these provisions on the basis that Congress was attempting to “commandeer”
state executive branch officials to implement a federal program. While Printz reiterated
arguments regarding the intent of the Founding Fathers and the nature of a federalist
system, it also relied heavily on the absence of historical examples of Congress imposing
such requirements on states.14
Sovereign Immunity and the Fourteenth Amendment
The Eleventh Amendment reads as follows: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State.” In Hans v. Louisiana,15
however, the Court provided for an interpretation of the Amendment which barred all
suits by citizens against a state, unless Congress had abrogated state sovereign immunity.16
In Seminole Tribe of Florida v. Florida, a 5-4 decision, Justice O’Connor joined the
majority opinion which held that the Article I powers such as the commerce clause could
not be used to waive a state’s sovereign immunity. The Court did indicate, however, that
Congress can abrogate state sovereignty under the Fourteenth Amendment,17 thus leading
litigants to try to establish a Fourteenth Amendment basis for federal legislation.
The scope of Congress' power under § 5 of the Fourteenth Amendment, however, has
been in flux over the years.18 In the case of City of Boerne v. Flores, the Court struck
down the Religious Freedom Restoration Act (RFRA) as beyond the authority of
11 505 U.S. at 164.
12 Id. at 168.
13 521 U.S. 898 (1997).
14 Id. at 905-10.
15 134 U.S. 1 (1890).
16 517 U.S. 44 (1996).
17 Section 1 of the Fourteenth Amendment provides that states shall not deprive citizens of "life,
liberty or property" without due process of law nor deprive them of equal protection of the laws,
while § 5 provides that the Congress has the power to legislate to enforce the Amendment.
18 See Katzenbach v. Morgan, 384 U.S. 641 (1966)(Court would approve legislation if Congress
had established rational basis that legislation was necessary to protect a Fourteenth Amendment
right); Oregon v. Mitchell, 400 U.S. 112 (1970)(rejected ability of Congress to extend theth
substantive content of 14 Amendment rights).
Congress under § 5 of the Fourteenth Amendment.19 RFRA was passed in response to
Oregon v. Smith,20 where the Court had lowered the standard used to evaluate whether a
law of general applicability could be applied to the free exercise of religion. RFRA was
an attempt by the Congress to overturn the Smith case, and to require a showing of
compelling governmental interest in these cases. In Flores, the Court struck down RFRA,
finding that legislation enacted under § 5 of the Fourteenth Amendment must be a
“congruent and proportional” remedy to a pattern and history of constitutional
violations.21 An important part of this analysis requires discerning whether there was a
history and pattern of unconstitutional discrimination, and whether legislation would
alleviate the problem.
This decision soon led to a series of cases regarding what historical factors should
be considered in evaluating Congress’s § 5 authority.22 In Kimel v. Florida Board of
Regents,23 Justice O’Connor authored an opinion striking down the application of age
discrimination laws to the states. In Kimel, the Court held that age is not a suspect class,
and that the provisions of the ADEA far surpassed the kind of protections that would be
afforded such a class under the Fourteenth Amendment. Further, as most age
discrimination does not rise to the level of constitutional violation, the Court found no
evidence of a pattern of state governments discriminating against employees on the basis
of age. Consequently, the Court held that a state could not be liable for damages under the
ADEA.
Commerce Power
From 1937 to 1995, the Supreme Court did not hold a congressional statute to be
beyond the scope of the authority vested in Congress by the Commerce Clause.24 Since
1995, however, the Court has decided three major cases impacting Congress’s power
under the Commerce Clause.25 In both United States v. Lopez (1995) and United States
v. Morrison (2000), the Court invalidated acts of Congress for exceeding the scope of the
Commerce Clause. Nevertheless, in Gonzales v. Raich (2005), the Court upheld the
federal Controlled Substances Act as a legitimate exercise of Congress’s power under the
Commerce Clause. An examination of Justice O’Connor’s participation in these cases
19 521 U.S. 507 (1997).
20 494 U.S. 872 (1990).
21 521 U.S. at 520 (1997).
22 College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S.
527 U.S. 627 (1999); Board of Trustees v. Garrett, 531 U.S. 356 (2000); Nevada Department of
Human Resources v Hibbs, 528 U.S. 721 (2003).
23 528 U.S. 62 (2000).
24 For a more detailed discussion of Congress’s Commerce Power, see CRS Report RL32844, The
Power to Regulate Commerce: Limits on Congressional Power, by Kenneth R. Thomas & Todd
B. Tatelman.
25 See United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598
(2000); Gonzales v. Raich, ___ U.S. ___, 125 S.Ct 2195 (2005).
places her squarely on the side of limiting Congress’s authority with respect to commerce
and, thus, protecting the prerogatives of the several states.
In Lopez, the Court struck down the Gun-Free School Zones Act, which made it a
federal crime to knowingly possess a firearm in a school zone.26 The Court held that
because the act neither regulated a commercial activity nor contained a requirement that
the possession of the firearm was connected to interstate commerce, the act exceeded
Congress’s authority under the Commerce Clause.27 While Justice O’Connor did not
author an opinion in this case, she did join a concurring opinion written by Justice
Anthony Kennedy. Justice Kennedy’s concurrence, relying in part on Justice O’Connor’s
majority opinion in New York v. United States,28 stressed the notion that under a federalist
system of government, there are required to be discrete lines of political accountability,
“one between citizens and the Federal Government; the second between the citizens and
the States.”29 In addition, the opinion notes that when Congress legislates in areas that
have traditionally been reserved for the States “the boundaries between the spheres of
federal and state authority would blur and political responsibility would become
illusory.”30 Finally, the opinion emphasizes that existing state authority was already
sufficient to have enacted similar measures, and noted that the effect of a federal statute
“forecloses the States from experimenting and exercising their own judgment in an area
to which States lay claim by right of history and expertise . . . .”31
In United States v. Morrison, the Court, with Justice O’Connor joining the majority’s
opinion, again struck down a federal statute, the Violence Against Women Act, on the
grounds that the legislation’s creation of a private right of action against perpetrators of
such crimes exceeded Congress’s authority under the Commerce Clause. In Gonzales v.
Raich, however, which dealt with a conflict between California's Compassionate Use Act
and the federal Controlled Substances Act (CSA), the Court upheld the federal statute,
reasoning that Congress had a “rational basis” for its conclusion that leaving
home-consumed marijuana outside federal control would substantially affect conditions
in the interstate market.32 In Raich, Justice O’Connor authored a dissenting opinion
focusing primarily on the lack of evidence indicating that users of medicinal marijuana
have a discernable or significant effect on the interstate market that Congress sought to
regulate.33 Moreover, Justice O'Connor, consistent with her majority opinion in New York
26 See 18 U.S.C. § 922(q)(1)(A) (1994).
27 See Lopez, 514 U.S. at 551.
28 New York v. United States, 505 U.S. 144 (1992). For further discussion on this opinion, see
Tenth Amendment section supra/infra.
29 Id. at 576 (Kennedy, J., concurring).
30 Id. at 577 (Kennedy, J., concurring) (citing New York v. United States, 505 U.S. at 155-169).
31 Id. at 583 (Kennedy, J., concurring).
32 See Raich, 125 S.Ct. at 2205; see also CRS Report RS22167, Gonzales v. Raich: Congress’s
Power Under the Commerce Clause to Regulate Medical Marijuana, by Todd B. Tatelman.
33 Id. at 2224 (O’Connor, J., dissenting) (stating that “[e]ven if intrastate cultivation and
possession of marijuana for one’s own medicinal use can properly be characterized as economic,
and I question whether it can, it has not been shown that such activity substantially affects
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and Justice Kennedy’s concurring opinion in Lopez, emphasized the importance of
federalism’s notion of “joint sovereignty.” Justice O’Connor argued that by affirming
this type of overreaching by Congress, the Court was depriving the States of their ability
to make their own independent political judgments with respect to the validity of
medicinal marijuana laws.34
Spending Power
The Court has repeatedly held that Congress, via its Spending Power, has the ability
to condition the receipt of federal funds upon compliance by the states with federal
statutory and administrative directives.35 The Court, most extensively in South Dakota
v. Dole, has set forth standards regarding Congress’s discretion over the attachment of
grant conditions.36 To date it appears that federalism restraints found with respect to other
federal powers have not been applied to spending conditions. While Justice O’Connor
has played a major role with respect to the development of federalism constraints on
Congress’s power, her writings with respect to the Spending Clause have been limited to
her dissenting opinion in Dole.
In Dole, the issue before the Court was the constitutionality of Congress’s
conditioning of federal highway funds on the states’ adoption of a minimum drinking age
of 21. The Court, in an opinion by Chief Justice Rehnquist, upheld the condition as a
valid use of Congress’s spending power.37 Justice O’Connor distinguished between
permissible and impermissible conditions on federal funds arguing that “Congress has no
power to impose requirements on a grant that goes beyond specifying how the money
should be spent.”38 Thus, Justice O’Connor concluded that the 21-year minimum drinking
age was not a condition on how the States could spend the money, but rather who is
eligible to purchase and consume liquor.39
33 (...continued)
interstate commerce.”).
34 Id. at 2229 (O’Connor, J., dissenting) (stating that “[t]his overreaching stifles an express choice
by some States, concerned for the lives and liberties of their people, to regulate medical
marijuana differently.”).
35 See South Dakota v. Dole, 483 U.S. 203, 207-12 (1987).
36 See id. The Court held that the condition must advance the general welfare; be unambiguous;
be related to the federal interest for which the funds are expended; must not induce the States to
engage in unconstitutional activities; must not be so coercive as to pass the point at which
“pressure turns into compulsion;” and the States must remain free to reject the funds. See id. at
37 Id. at 212-13 (O’Connor, J., dissenting).
38 Id. at 216 (O’Connor, J., dissenting).
39 See id. at 218 (O’Connor, J., dissenting) (“[r]ather than a condition determining how federal
highway money shall be expended, it is a regulation determining who shall be able to drink
liquor. As such it is not justified by the spending power.”).