Foreword: Federalism Points and the Sometime Recognition of Essential Federal Power

For some time now, a narrow but persistent majority of the Supreme Court has undertaken the project of circumscribing federal power. Marching under the banner of state sovereignty, this majority has attacked the flanks of congressional power in at least three areas: its enumerated powers, its power to direct the state administration of federal programs, and its power to abrogate state immunity from suit. During the October Term 2011, the battle over the appropriate balance of federal power and state sovereignty continued in earnest on all three fronts. This Foreword examines the Court’s 2011 term to find those points where contested federal power was upheld and reinforced and those where state sovereignty prevailed.

These points tell us a great deal about the current state of affairs and the nature of the Court’s ongoing conflict, revealing that while some important federal strongholds held well, the state sovereignty forces rather clearly advanced further, though not always in lockstep either substantively or strategically.