Congress acts while high court checks its list

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By HOWARD TROXLER

© St. Petersburg Times, published May 17, 2000

The most important debate going on in America today is not between George W. Bush and Al Gore.

It is a dispute between five justices of the U.S. Supreme Court on one side, against the other four.

If you are elderly, this affects you. If you are a woman, it affects you. Really, if you are a citizen of any stripe, it has the potential to affect you.

Here is the fight, simply put:

Can the U.S. Congress pass any law that it wants to?

For the first time in our modern history, five justices of the Supreme Court say "no."

We in Florida are in the thick of this debate. In a series of recent cases -- two of them from our state -- the Supreme Court has thrown out law after law passed by Congress.

On Monday, the court threw out part of the Violence Against Women Act, which allowed victims of rape, domestic violence and other gender-based crimes to sue their attackers in federal court.

Back in January, the court threw out part of the Age Discrimination in Employment Act, ruling that a Florida prison guard and a group of Florida university employees could not sue the state in federal court.

And before that, a bank in New Jersey tried to sue the state of Florida under federal patent laws, claiming it had invented the idea of prepaid college tuition. But the Supreme Court ruled that Congress' patent laws can't force Florida or any other state into court.

All of these rulings were 5-4.

In these cases, the Supreme Court was not coming out in favor of violence against women.

It was not saying, "We like age discrimination."

It was saying that Congress is not given that kind of power in the Constitution. Some things are up to the states.

"If the allegations here are true," Chief Justice William Rehnquist wrote in Monday's ruling, which involved a rape victim from Virginia, "no civilized system of justice could fail to provide her a remedy ...

"But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States."

On Rehnquist's side are justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. On the losing side are David H. Souter, John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.

This is the most important shift in our philosophy of government since Franklin Roosevelt and the New Deal. For most of the past half-century, Congress has leaped in and regulated just about anything it wanted to.

But Article I, Section 8 of the Constitution begins with the words: "Congress shall have the power to ... "

The ensuing list says Congress can raise taxes, borrow money, regulate commerce, coin money, declare war, raise armies and so on. The question is whether Congress can do something that isn't on the list.

In the case of the Violence Against Women Act, Congress claimed that it was acting to protect interstate commerce and to guarantee equal protection to all citizens under the 14th Amendment. The court rejected both those claims (which raises the question of how it would have ruled on the civil-rights acts of the 1960s).

This is why, if for no other reason, you should care about who wins the presidential election. The winner will name the next Supreme Court justice. The Rehnquist side could become a solid 6-3 majority, or the trend could be reversed 5-4 in the other direction.

I tried to ask the Bush and Gore campaigns for comment, and got nowhere. Bush's Web site says he would "appoint strict constructionists who would interpret the law, not legislate from the bench." From that, one gathers that Bush probably favors what's happening and Gore doesn't, but it would be good to hear them talk more about it.

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