A Win for Federalism and a Lost Opportunity

 In Libertarianism
Photo by Claire Anderson on Unsplash
By Barrett Anderson

Last term, the Supreme Court decided Virginia Uranium Inc. v. Warren (2019), a case that was decided with little media coverage, but represents a limited victory for limited federal government activists. During the latter half of the 20th century, the concept of American federalism was a foundational doctrine that existed in name only, giving federalism proponents little to cheer. Beginning with the passage and solidification of New Deal programs, the federal government expanded1 its reach into areas previously reserved to the states at a rapid pace. In addition to the expansion of federal power, New Deal policies also opened new areas to regulation by state governments, expanding the power of government2 in general rather than just preempting state authority with federal authority. Throughout this governmental expansion, the institution tasked with determining the scope of federal power3 in relation to state authority, the Supreme Court, permitted and affirmed vast federal expansions.

In a number of cases, prior justices of the Supreme Court have repeatedly interpreted the authority of Congress to regulate commerce broadly, permitting significant expansions of the federal government’s authority. New Deal cases dealing with a wide range of issues such as minimum wage laws (West Coast Hotel v. Parrish 1937), labor law (N.L.R.B. v. Jones & Laughlin Steel Corp. 1937), Social Security (Steward Machine Co. v. Davis 1937), and employer income tax withholdings (Helvering et. al. v. Davis 1937) consistently expanded federal governmental authority over private entities. The justices’ ultimate expansive interpretation occurred in Wickard v. Filburn (1942) when the Court ruled that any activity with substantial economic effects could be regulated or prohibited under federal commerce authority. However, the Rehnquist and Roberts Courts began a slow narrowing of federal authority under the Commerce Clause with cases such as U.S. v. Lopez (1995), U.S. v. Morrison (2000), and N.F.I.B. v. Sebelius (2012). 4

Fast forward several years to the 2019 Supreme Court term and the questions concerning federal versus state authority continue, with Warren. This case dealt with the authority of Virginia to ban uranium mining within its borders, which opponents argued was preempted by the federal Atomic Energy Act (AEA). The AEA establishes the Nuclear Regulatory Commission (NRC) and authorizes the NRC to foster and control peacetime development of atomic energy. Virginia Uranium, the petitioners in this case, argued that the state ban created an irreconcilable “obstacle” for the NRC to fulfill its congressionally mandated duty and therefore should be preempted.

Furthermore, the petitioners argued that the intent of Virginia’s general assembly was to explicitly skirt the NRC’s regulatory authority. Virginia Uranium’s arguments are dangerous for advocates of limited government for several reasons. First, the text of the AEA does not address the actual mining of uranium, which the state of Virginia successfully argued was outside the scope5 of federal authority and thus reserved to the states. Extending federal preemption to cover issues not found in federal legislation, not to mention included within the traditional purview of the states, would have been a significant extension of federal authority. Second, the plurality opinion refused to delve into the intent of the state legislature in passing the ban, which provides some protection to states from having federal courts second guess state statutes. Judicial investigation into state legislative intent permits the federal judiciary to encroach on state jurisdiction by constantly questioning the motives behind each statute that the judge may disagree with. Fortunately, the lead opinion rejected each of these expansive arguments. Unfortunately, only three justices joined the opinion.

Despite questions concerning the wisdom of Virginia’s outright ban on uranium mining – especially in an age where nuclear energy seems like one of the world’s greatest assets in combating climate change – those elected officials closest to the people should be making decisions concerning issues that impact state residents’ livelihoods, health, and quality of life, not removed federal officials. Although Justice Gorsuch’s plurality opinion beat back yet another assault on the balance between state and federal power, unfortunately it was only a plurality opinion with a lack of precedential authority. These small hard-fought victories delineating federal and state power need the greatest amount of permanence possible, i.e. majority opinions that set precedent for future Courts, if federal authority is ever going to be contained. Interestingly, an alliance of both conservative and liberal justices rejected such an expansive reading of federal authority. However, Warren may have been a missed opportunity to push further back against expansive interpretations of federal authority and paint a clearer line concerning the division of state and federal authority.


  1. https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/ukalr41&id=506&men_tab=srchresults 

  2. https://heinonline.org/HOL/Page?handle=hein.journals/uclr64&div=25&g_sent=1&casa_token=&collection=journals 

  3. See James Madison’s discussion of the distinction between federal and state power in Federalist 39 and the Supreme Court’s responsibility to delineate. Available online: https://billofrightsinstitute.org/founding-documents/primary-source-documents/the-federalist-papers/federalist-papers-no-39/ 

  4. “The Power to Regulate Commerce: Limits on Congressional ….” 16 May. 2014, https://fas.org/sgp/crs/misc/RL32844.pdf. Accessed 24 Jan. 2020. 

  5. “Environmental Clinic Brief Defends Virginia’s Uranium Mining ….” 28 Sep. 2018, https://www.law.virginia.edu/news/201809/environmental-clinic-brief-defends-virginia%E2%80%99s-uranium-mining-ban. Accessed 24 Jan. 2020.