Federalism: Some Notes on a National Neurosis

Abstract

decided in 1991, signalled this regression and New York v. United States, 3 decided in 1992, confirmed it.In Gregory, the Court held that the federal Age Discrimination in Employment Act of 1967, 4 which forbids the discharge of any employee over 40 years old on grounds of age,' does not apply to state court judges.While the Act covers state employees, it excludes "an appointee on the policymaking level," '6 and the Court held that a state court judge was such an appointee.7 By itself, this result does not necessarily provide evidence of backsliding.Federal statutes are generally interpreted by federal courts, and the Supreme Court's interpretation that state judges are policymakers, whether right or wrong, is certainly within the realm of reason.What is striking about the case, however, is the Court's rationale.Rather than stating that it was seeking the most plausible reading of the statute, the Court declared that principles of federalism created a presumption against the Act's coverage of the state's "important government officials"a presumption that could be overcome only by clear, unambiguous language.8 The Court justified this presumption with an impassioned encomium to the federalist system: "In the tension between federal and state power," Justice O'Connor wrote, "lies the promise of liberty." 9 The Supremacy Clause,'° which is generally regarded as the basic structuring principle of federal-state relations, was described as a sort of unfair advantage of the central government, "an extraordinary power in a federalist system."'"All of this was stated in support of a principle of statutory interpretation, not as an independent, constitutional constraint on federal legislation.3. 112 S. Ct. 2408Ct.(1992)).This case is discussed in Althouse, supra note 2, at 1013-19; H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 VA.L. REV.633 (1993); Saikrishna B. Prakash, Field Office Federalism, 79 VA.L. REV.1957 (1993).4. 81 Star.602 (codified at 29 U.S.C. § § 621-634 (1988 & Supp.1992)).5. Id. § § 623(a), 631(a).6. Id. § 630(0.7. Gregory, 111 S. Ct. at 2404. 8. Id. at 2402-03.This approach is defended, with qualifications, in Eskridge & Frickey, supra note 2, at 629-45; Frickey, supra note 2. 9. Gregory, 111 S. Ct. at 2400.For additional impassioned language; see infra text accompanying notes 24-25.Justice O'Connor's approach to federalism is discussed in Richard A.

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