WASHINGTON -- The U.S. Supreme Court has signaled it is ready to restore some of the sovereignty states have lost to the federal government, but it may be up to state governments themselves to seize the initiative to get some of that power back, legal experts said.
In a splintered ruling last month in Gregory v. Ashcroft, the court ruled that Congress will have to be very specific in the future when it wants to preempt state law -- a decision that could provide states with a greater degree of autonomy over governmental affairs.
"The court said Congress has a constitutional obligation to be respectful of the states," said Thomas E. Baker, a law professor at Texas Tech University. "How much respect Congress is supposed to give states, and when Congress is guilty of being disrespectful, is unclear."
Voting 7-2 in the case, the court held that Missouri's constitutional requirement that state judges retire at age 70 does not violate the U.S. Constitution's equal protection clause.
But the court, voting 5-4, went on to rule that the federal Age Discrimination in Employment Act of 1967 does not apply to state court judges because the anti-discrimination law does not specifically include them.
In so doing, the court adopted what it called a "plain statement rule," essentially a requirement that Congress be quite clear which groups it wishes to cover with a piece of legislationi when it intends to override state law.
"This plain statement rule is nothing more than an acknowledgment that the states retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere," the court said in a decision written by Justice Sandra Day O'Connor.
Mr. Baker said the court's ruling provides states with an opening to challenge federal laws that they believe infringe on their autonomy.
"It will be interesting to see how state attorneys general use this decision to challenge federal statues," he said. "If they pick it up and use it as a sword, it will be an occasion for the courts to sort all this out. Right now, though, it's a little too early to tell."
Edward T. Alter, treasurer of Utah, Welcomed the ruling. "It's a small step, a tiny step," he said. "But the directioni is more important to me than the mileage made with each step."
Complicating the issue of how far the justices are willing to go is the dissent Justice O'Connor's plain statement rule engendered. Justice Byron R. White and Justice John Paul Stevens said the ruling upends settled precedent.
"The majority's plain statement rule is not only unprecedented, it directly contravenes our decisions in Garcia v. San Antonio Metropolitan Transit Authority and South Carolina v. Baker," the two justices said.
In the Garcia Case, decided in 1985, the court said statesmust rely on the federal legislative process to avoid encroachments on their sovereignty. The court effectively said it would no longer consider state challenges to federal laws and regulations, even if states belived them unconstitutional.
In the 1988 South Carolina case, the court ruled the tax-exempt status of municipal bonds is not constitutionally protected. The court there held that so long as "the national political process did not operate in a defective manner, the 10th Amendment is not implicated."
The Consitution's 10th Amendment provides that all powers not specifically given the federal government, or specifically denied to the states, are retained by the states.
Glen Nager, a partner in the Washington offices of Jones, Day,, Reavis & Pogue, noted that justices on the losing end of a case "often purposefully read more into a ruling than is there."
He added that Justice White has consistently expressed the view that there are no limits on federal governmental power unless expressly stated in the Constitution. "He doesn't read the 10th Amendment as such a limit," he said.
On the other hand, Justice O'Connor, a former member of the Arizona legislature, dissented in both the Garcia and South Carolina rulings and has been a strong supporter of state sovereignty.
Mr. Nager said that though the court's ruling in the Gregory case opens the door to the possibility of greater state freedom from federal interference. "there's not enough to tell yet. You can't really read those tea leaves."
Mr. Baker concedes the ambiguity left by the court's ruling. "If you pay attention to what the dissent says, it could describe as the farthest reaches, or the potential, of the decision," he said. "Whether they're crying wolf or not depends on the next few cases."
Richard Samp, chief counsel of the Washington Legal Foundation, a conservative group, believes the court's ruling was more clear cut. "It seems to me that the balance of the court has shifted back to the idea that states have a sphere of influence beyond the federal government," he said. "This decision goes back in that direction. There is some independent area of state control."
Mr. Samp said that though the court's decision was clearly a blow to Garcia, the court as is typical stopped short of overturning the precedent. "It usually doesn't overturn a previous ruling outright" the first go around, he said, adding that the precedent is chipped away through a series of three or four cases before being overturned explicitly.
Some court watchers attribute the court's apparent shift on states rights to a conservative juggernaut. Mr. Samp, for example, noted that the retirement of Justice William J. Brennan Jr. provided an opening on the bench for Justice David H. Souter.
Justice Brennan wrote the court's majority opinion in the South Carolina case, while Justice Souter provided the key fifth vote for Justice O'Connor's plain statement rule in the Gregory case.
Russell Galloway, a law professor at Santa Clara University in California, said Justice Souter is clearly within the court's conservative block, and is most closely aligned with Justice O'Connor.
He said Justice Souter voted with Justice O'Connor in 92 of the 102 decisions he participated in during his first term on the bench.
But both Mr. Galloway and Mr. Samp said the issue of state autonomy is one that cuts across ideological lines.
Mr. Galloway noted a recent court ruling in a Wisconsin case in which the justices held that federal laws do not preempt municipal regulation of presticide use -- a "liberal" stand. He said Chief Justice O'Connor, who signed onto the court's decision in that case, "will be ndged in whatever direction their states' rights inclinations lead them."
Mr. Alter of Utah said, "It's not so much an issue of liberal versus conservative. It's having someone on the court with some state perspective."
According to Mr. Baker, the court's ruling in the Gregory case suggests the court is ready to give states their day in court. "The attitude of the court, the posture of the court, toward federalism issues has changed," he said. "You have to remember, though, that the notion of federalism doesn't fit into a neat and predictable formula. It has more of an accordion quality."
The court's recent struggles with the issue bear that statement out. In 1976, the cour truled 504 in National League of Cities v. Usery that the Constitution's commerce clause does not empower Congress to enforce provisions of the federal Fair Labor Standards Act "in areas of traditional government functions."
Just nine years later, in another 5-4 ruling, the court threw that precedent out in Garcia. And this year, in another 504 vote, the court signaled in Gregory a willingness to move away from Garcia.