Recent news reports and commentary have focused on how U.S. Supreme Court Chief Justice John Roberts tried (obviously unsuccessfully) to avoid the complete overturning of Roe v. Wade, and how his “incrementalist” mindset has (seemingly present in the Obamacare case in 2012 as well) been somewhat exasperating to the more aggressively conservative members of the Court. Against this backdrop it bears remembering that Chief Justice Roberts has himself been a reliably conservative vote and voice on many important constitutional matters, and that he often eschews incrementalism in favor of sweeping conservative change.
One important example is Roberts’ authorship of the 2013 case of Shelby County v. Holder that essentially gutted the so-called “preclearance” requirements under the Voting Rights Act (VRA). Under preclearance, jurisdictions (e.g., states, counties, etc.) that are “covered” must obtain approval from the federal government (either the federal courts or the U.S. Department of Justice) prior to implementing changes in voting systems and rules, even systems and rules for state and local (as distinguished from congressional or presidential) elections. In theory, Congress could make new findings and amend the VRA to (re)install pre-clearance requirements, but in 2013 when Shelby County came down, the writing was already on the wall concerning the difficulty recent Congresses have had in obtaining the necessary votes to enact controversial major legislation of any kind.
Shelby County is important because voting rights are foundational, a fact that is keenly apparent in the months leading into (yet another) hard-fought national election. But Shelby County is important also because one of the theories it invoked—that “covered” jurisdictions were being treated unconstitutionally because they were being treated worse than non-covered states and localities—has potentially broad implications. This so-called “equal sovereignty” idea—that arguably requires a distinctively strong justification before some states are singled out for imposition of special requirements or negative treatment at the hands of Congress—is now being invoked in arenas that are very different from (but perhaps no less important than) voting rights.
A case in point is the effort by Ohio and several other states to use the equal-sovereignty notion to pull down California’s regulation of air pollution, regulation that is more stringent than the federal standard. The federal Clean Air Act (CAA) generally preempts states from adopting their own air-pollution standards, but directs the Environmental Protection Agency to allow California, specifically, to exempt itself from this preemption and adopt its own, California-specific and more stringent standard. Other states are permitted to use either the federal standard or the California standard, but (unlike California) are not allowed to set their own standards that deviate from the federal norm. This special treatment of California, other states now argue, disrespects equal sovereignty and violates the Constitution.
There are some obvious problems with this attack on the CAA. First off, consider the harm claimed by other states. They purport to suffer injury because, given California’s large population and market power, automakers must tailor their products for sale in all states to the California standards—because no one wants to buy a car that can’t be used in California. As a result, other states contend, car prices all over the country are higher than they would be if California were not allowed to implement a standard more stringent than the federal baseline. Of course, any claim of inequality (and claims under the equal-sovereignty principle are exactly claims of impermissibly unequal treatment) can be remedied two ways: by leveling down (and eliminating the benefit being conferred onto the favored entities) or leveling up (and extending the benefit to all). If Congress (or a court) chose to redress any problematic inequality here by leveling up—that is, by giving all states the power to implement standards more stringent than the federal baseline—then the injury other states purport to suffer would remain, indeed perhaps be exacerbated by other states that do not embrace California’s rules but might want to adopt standards more stringent than the federal norm, even if they are less stringent than California’s.
That kind of remedy problem exists generally in inequality cases, and even leveling up does arguably solve the problem of comparative disrespect in which the equal-sovereignty idea is grounded. But the attack on the CAA has other, deeper flaws.
For starters, the equal sovereignty idea even as applied in Shelby County is quite likely wrong. Unlike some provisions in the Constitution (e.g., the requirement in Article I, section 8, clause 1 that all “Duties, Imposts and Excises shall be uniform throughout the United States,” and the requirement in Article I, section 8, clause 4 that laws on the subject of bankruptcy be “uniform . . . throughout the United States”, etc.), the Fifteenth and Fourteenth Amendments, under which Congress enacted the Voting Rights Act, do not contain any requirement of geographic uniformity. Instead, the text of section 5 of the Fourteenth Amendment and section 2 of the Fifteenth Amendment (the parts of those amendments giving Congress enforcement power) tracks the text of the so-called “Necessary and Proper” Clause of Article I, which the Court has read generously and without any geographical uniformity requirement. And the history of the Reconstruction Amendments suggests that the federal government did not regard all states with equal trust or skepticism. Those states that had rebelled were viewed by the Reconstruction Amendment framers and ratifiers with special distrust, when it came to proclivity towards racial discrimination, the focus of the VRA.
Some defenders of the equal sovereignty principle rely on cases from the Supreme Court prohibiting Congress from attaching conditions to some states, when seeking membership in the United States, that other, existing states are not burdened by. Some scholars, such as Leah Litman, have argued with some force that these cases are best understood as meaning no more than that Congress cannot require new states to submit to conditions that Congress lacks power to impose on existing states. But even if this characterization does not account for all the cases involving admission of new states, admission is an entirely distinct setting, for the simple reason that, unlike existing states, states seeking to be admitted don’t already have representation in Congress and cannot be heard in their own self-defense (more on this idea below). So special protection for states who don’t yet have a voice in DC might make sense even if the equal sovereignty idea as applied to already-existing states is somewhat dubious.
But even assuming arguendo that Shelby County and its invocation of equal sovereignty ideas there were correct, such ideas have no application to the Clean Air Act setting, for two reasons.
First, the Clean Air Act was enacted under Congress’s Commerce Clause powers, a provision that decidedly does not require geographic uniformity. Professor Litman provides dozens of examples of non-uniform federal Commerce Clause regulations, ranging from early federal laws adopting different statutory reporting requirements for merchandise brought into ports in different states, to more recent laws that single out a few states for special reporting requirements with regard to salmon.
Some examples that some critics of the equal-sovereignty notion invoke perhaps do not formally involve disparate treatment along state lines by Congress. For example, in the sports gambling setting Congress has enacted the Professional and Amateur Sports Protection Act (PASPA). PASPA sought to prohibit states from operating, sponsoring, or advertising sports gambling, but it grandfathered in state support for gambling in place at the time of the federal enactment. This provision benefitted only a handful of states whose identity was known, but since it was drawn in neutral terms—any state that already was supporting gambling could continue to do so—arguably it did not formally treat states differently. (Yet another provision of PASPA gave New Jersey, by name and alone, the option going forward for a short period of time to support certain types of sports gambling. Indeed, this provision in PASPA—which surely did discriminate as between states—survived a challenge against an equal-sovereignty attack in the U.S. Court of Appeals before all of PASPA was invalidated on other grounds in the U.S. Supreme Court.)
Coming back to the Clean Air Act and its Commerce Clause foundation, Congress could, if Congress wanted, adopt California’s stringent air-pollution standard for California residents alone, and codify that decision in federal statute. In other words, Congress could, in the CAA, have adopted two federal standards—one for California (along the lines of what California would want to fashion in the absence of the CAA) and another one for the rest of the county. If Congress could federalize California’s preferred standard for California alone, there is no argument—save for some non-delegation arguments that the Court has long and rightfully rejected in the context of delegation to states—for why Congress can’t simply exempt California to fashion its own rules itself going forward.
This is to be contrasted with the Voting Rights Act. Absent past wrongdoing by certain states and subparts thereof, Congress (under the Court’s understanding of the Fourteenth and Fifteenth Amendments) would have no basis to regulate state and local elections at all, much less to prescribe nonuniform rules and regulations for state and local elections around the country. Congress’s only power in this area is to redress and prevent constitutional violations. When Congress’s powers are limited to remedy, perhaps there is some sense to the notion that Congress must explain why it is remedying violations in some states but not others. Even here, one could plausibly argue that Congress’s remedying of constitutional violations in some places but not in others raises no more profound equality concerns than does a Highway Patrol officer who stops some but not all speeders. But if Congress is supposed to be (and limited to) regulating to address a particular evil (violations of the Fourteenth and Fifteenth Amendments), rather than fashioning broad policy based on its own sense of what works best in different regions, then application of some kind of equal-sovereignty might have some surface appeal. But in the Commerce Clause setting (like others where Congress all the time makes federal law that varies by location—such as approval of some but not all similarly written interstate compacts based on differences in the states to which they apply) simply wouldn’t make any sense, because, as noted earlier, Congress could federalize the disuniformity and enshrine it into federal law.
And there is a second reason by the equal-sovereignty idea in Shelby County should in no event apply to the Clean Air Act’s arguably preferential treatment of California: the fact that the alleged inequality disfavors the many, rather than the few.
In Shelby County, the covered jurisdictions did not make up a majority of states who have full representation and voice in Congress. Discrimination against numerical minorities—whether racial or geographic—implicates concerns about unfair treatment because minorities, by mathematical definition, often have trouble defending their interests in majoritarian institutions like legislatures. But when the burdens of a regulatory regime are wide and dispersed (as they would be in the CAA’s exemption of California since they are felt by people and states all around the country), and do not fall specifically on some politically disempowered minority, that is precisely the situation when classic constitutional equality theory counsels judicial restraint and deference to the political process.
The key distinction is that while serious equality concerns may sometimes justify judicial intervention, a commitment to democracy precludes rigorous review when the majority’s decision to treat some people differently than others is trustworthy rather than invidious. In the famous footnote 4 of United States v. Carolene Products Co., for example, the Court indicated that generally speaking the political process is to be trusted to correct its own mistakes, but that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” A corollary of this analysis is Justice Robert Jackson’s oft-cited concurring opinion in Railway Express Agency v. New York in which he made clear that the most effective way to prevent “arbitrary and unreasonable” government action is to require that the burdens imposed on minorities be imposed on the majority as well. Or, to put it another way, we can trust the majority more when it enacts a law that imposes burdens on itself than when it enacts a law that directs its burdens solely upon minoritarian interests.
This principle is also reflected in other constitutional provisions. For example, when a state’s citizens are singled out for unfavorable federal tax treatment, the Court is much more skeptical than when a state’s citizens are given more favorable treatment by the federal government. This is because citizens of the other 49 states bear the costs of such favoritism and can take care of themselves in the national political process to avoid it. Thus, even when, as in Article I, section 8, clause 1, the Constitution’s text speaks explicitly of uniformity in taxes, the Court has permitted exemption of one or a small number of states, as it did when it upheld Congress’s exemption only of oil produced in Alaska in the seminal 1983 United States v. Ptsasynski case. No wonder, then, that many of the examples provided by Professor Litman of disuniform congressional regulation, the constitutional legitimacy of which everyone has taken for granted, involve Congress exempting, rather than imposing on, a small number of identified states.
For both of these reasons—the Commerce Clause foundation and the fact that the burden, if any, created by the law is borne by a diffuse majority of states and people, the equal-sovereignty challenge to the Clean Air Act should be rejected.