Picking up on this point, I think one can make a pretty strong positive argument that the Court is in fact more likely to respond when it perceives an abdication of the role that Congress should play in assessing the federalism implications of what it does.  When a statute passes unanimously, or nearly so, it appears less a product of informed deliberation than indifference to the constitutional issues that might be lurking.  I am not advancing this as a normative defense of what the Court has done, but simply to suggest a rationale for the apparent paradox that Marty and Sam identify whereby the Court is indeed more likely to strike down a statute with overwhleming congressional support than one with a thin legislative minority.  



Samuel Issacharoff
Reiss Professor of Constitutional Law
NYU School of Law
40 Washington Square South
New York, N.Y. 10012
(212) 998-6580
Fax: 212-995-4590

Marty Lederman <marty.lederman@comcast.net> 7/20/2006 12:07:36 PM >>>
Oh, don't get me wrong:  I'm not remotely suggesting either that Boerne was rightly decided, or that the next VRA case won't be distinguishable.  I was simply pointing out, as did Sam, that the Court could not care less how overwhelming the vote in Congress was.  Indeed, there might even be a slight (and unfortunate) assumption by the Court that overwhelming consensus is a signal of grandstanding and symbolic legislation -- or proof of a too-powerful national legislature insensitive to the interests of the states and willing to run roughshod over them.

I am not approving such a view.  Still, it is striking that, come to think of it, virtually all of the statutes the Court has invalidated on federalism grounds in the past 14 years have been enacted by overwhelming majorities.  There are probably exceptions, but none leaps to mind right now from the statutes at issue in this list:

New York;

Printz;

Seminole Tribe;

Florida Prepaid;

College Savings

Lopez;

Morrison

Boerne;

Kimel;

Garrett