WASHINGTON -- Former federal Judge Robert H. Bork, whose nomination to the Supreme Court failed in the Senate four years ago, might well have been a staunch defender of state autonomy had he reached the high court, a recent paper by Judge Bork suggests.
Tracing the history of federalism, a term used to describe the balance of power between the states and federal government, Judge Bork writes, "Congress and executive agencies have increasingly expanded Washington's control over matters that were intended to be governed by the states."
Judge Bork, who sat on the U.S. Court of Appeals for the District of Columbia Circuit before his nomination to the Supreme Court, now is a scholar at the American Enterprise Institute, a conservative research organization. His paper, "Federalism and Federal Regulation: The Case of Product Labeling," was commissioned by the Washington Legal Foundation, a conservative group that follows the Supreme Court.
In a nearly uninterrupted series of rulings since the 1940s, Judge Bork says, the court has sided with the federal government in power disputes with states.
For example, in a 1942 case, Wickard v. Filburn, the court ruled that Congress could regulate the amount of wheat raised on a farm, even though the wheat was not grown for interstate trade.
Another example, not cited by Judge Bork, is the 1988 case of South Carolina v. Baker. The court ruled that the tax exemption for interest earned on municipal bonds is not constitutionally protected. The court there upheld federal regulations that the bonds be issued in registered, rather than bearer, fo m.
According to Judge Bork, the federal government since the days of President Franklin Delano Roosevelt has used the Constitution's commerce clause -- the provision that gives Congress exclusive authority to regulate interstate commerce -- as a means of diminishing states' autonomy.
He says the trend is likely to continue.
"As the composition of the [Supreme Court] changes, it is possible that some minor limits to the commerce power will develop, but it is extremely unlikely, indeed impossible to believe, that the court will ever return to the vigorous protection of federalism that it displayed up to the mid-1930s," he says.
At the same time, he warns against an overreaction.
"The fact that the pendulum has swung too far in the direction of centralization should not produce a knee-jerk hostility to federal power," he writes. "The framers and ratifiers of the Constitution, after all, did create a government of the United States with real powers."
He said state interference with national trade was one of the primary reasons delegates from the states gathered in Philadelphia in 1787 to draft a replacement for the Articles of Confederation.
"Congress was given the power to regulate interstate commerce precisely to eliminate this interference," Judge Bork writes. "Much as some of us may deplore the mis-use of that power, we must not fall into the opposite error of resisting its use on all occasions."
Judge Bork goes on the argue that the federal Food and Drug Administration erroneously decided not to preempt a strict California labeling law, which requires manufacturers to print warnings on products containing any chemical known to cause cancer or reproductive toxicity.
Noting that Illinois, New York, and other states are considering legislation similar to the California law, which is known more popularly as Proposition 65, Judge Bork says the state actions could "inhibit interstate commerce and make the national market contemplated by the Constitution less efficent."
He says that since not all states will have the same requirements, manufacturers will have to resort to short production runs, which are more costly. Differing requirements also would hamper firms' distribution of their goods when unforeseen demand for the products arose.
Consequently, Judge Bork concludes, separate state regulations could give competitive advantages to firms operating entirely within one state, possibly resulting "in the withdrawal of the interstate sellers and [the isolation of] some states from national commerce."
In a footnote, Judge Bork acknowledges he received "support" while working on the paper from the National Food Processors Association; Grocery Manufacturers of America; International Dairy Foods Association; Nonprescription Drug Manufacturers Association; National Soft Drink Association; Pharmaceutical Manufacturers Association; Cosmetic, Toiletry and Fragrance Association; and the Health Industry Manufacturers Association.
