Using “Federalism” To Advance Republican Interests

I referenced it briefly last Friday, but I have a column up at the Guardian about the potential for the Roberts Court to push the “federalism revolution” to much more indefensible ends than the Rehnquist Court did.

The potential for upholding SB-1070 is actually the least bad of the three conservative arguments. The “sovereign immunity” line of cases has always been appalling, although limited in their consequences. The case against the constitutionality of the PPACA isn’t quite as legally weak — it at least isn’t contradicted by the text of the Constitution — but it is very weak and this weakness is much worse given that it’s being used against the centerpiece policy of an incumbent administration. But if the case for upholding SB-1070 isn’t as inherently weak, it’s still worth comparing the apparent rejection of the preemption by the conservatives on the Court with their embrace of a much weaker preemption argument in AT&T v. Concepcion. The latter case should serve as a crucial reminder of a crucial principle of American politics — i.e. nobody actually cares about federalism, very much including the Roberts Court if state law gets in the way of business interests.